GPL-like patent license

[Mark Shewmaker]

On Tue, Jul 16, 2002 at 07:09:43PM -0400, Paul Syverson wrote:
> Hello,
> 
> The US govt. specifically NRL, has a patent on an anonymous
> communications infrastructure called Onion Routing.  I am one of the
> inventors.  We are working on a GPL/LGPL-like license for this.

Excellent.

> My purpose is to make the best possible use I can of this patent and to
> do so as quickly as possible.

> I have looked at the Red Hat "Promise"
> and Raph Levien's license, various "open patent" ideas. None seems to
> quite provide what I want. In particular...

I would like the Open Patent license to provide all of these things,
with some caveats:

> To allow proprietary interfaces into the infrastructure to encourage
> commercial use and development of the technology, hence the allowance
> of LGPL.

A problem that I see is that if a license allowed use of a patent
in LGPL code, it also implicitely allows closed-source code to
use the patent as well.  The OPL's for-Open-Source-use-only option
wouldn't allow this if there were other patents incorporated in
either the LGPL or closed source sections of code.

I haven't figured out how to do an LGPL-like option, other than
making an option that specifically allows for LGPL use itself--
and I have no objection to there being such an option.

> To prevent use of the patent under the license without distributing
> source code by running systems, perhaps even providing a service,
> and not distributing binaries; thus remaining compliant
> with `the letter of GPL, but not the spirit'.

What about internal-only uses of GPL'd code?  Or web services use
of GPL'd code which has been enhanced by incorporating functionality
that your patent functions.

I have a concern on the Open Patent License about the following
case:

1.  Someone allows a set of patents to be used for Open Source use.
    (details in the license--we're at the hand-waving part of
    discussion here.)

2.  Bad Company decides to use GPL'd code, makes modifications
    and enhancements but doesn't distribute them externally.

3.  Those enhancements include functionality covered by patents
    that Bad Company owns.

4.  Bad Company thus has advantages over everyone else in being
    able to use GPL'd code in a way that no one else in the world
    is allowed too, *and* Bad Company gets to use its competitors'
    patents while doing so!

To forstall this, I want the Bad Company to be required to similarly
license its patents.  Then the Bad Company won't have an unfair
advantage in being able to provide a service that includes patented
functionality licensed freely by its competitors but not licensed
freely by itself.

This isn't quite the same thing as what you're asking, in that
the company might be able to keep its source code modifications
secret.  (I personally still think the GPL doesn't allow that,
but that's a completely different discussion, and I'm very much
in the minority on my opinion.  As I admit that I'm likely to
be wrong in it, I don't to depend on it in the OPL.)  However,
it doesn't block other people from making similar modifications,
and as a practical matter, in that sort of situation the freely
distributable improvements tend to win out anyway.

I would much rather the OPL be improved to meet your needs, and
preempt the needless Open Soure license proliferation we've
seen to also occur in the world of patent licenses.

 -Mark Shewmaker
  mark at openpatents.org
  http://www.openpatents.org/
--
license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3