GPL-like patent license

[Paul Syverson]

> Date: Wed, 17 Jul 2002 00:00:27 -0400
> From: Mark Shewmaker <mark at primefactor.com>
> 
> On Tue, Jul 16, 2002 at 07:09:43PM -0400, Paul Syverson wrote:

[snip]
> 
> 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 could be wrong (likely) but I don't think this is true for the
license draft I sent out. I think it says that all the code that
constitutes use of the patented technology must be G3 (GPL, LGPL, or
government work not subject to copyright). If I have left a loophole
please explain it to me. The goal is to allow service vendors to build
proprietary interfaces onto the proxies that interface the system to
applications if they want.  The proxies would still be
LGPL. Everything but these proxies could probably even be GPL. My
primary reasons for not wanting to do it that way are (1) I would like
the basic license structure to be fairly generic, not just specific to
this technology, and (2) I don't want to make the license structure
any more complicated than it needs to be for many obvious reasons.

> 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.
> 

As I see it, that is what the draft I sent out does. Do you agree?

> > 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.
> 

I've thought about this, and it is my hope that the license I
circulated precludes it. Clauses 4 and 5 read.

4. Source code for all programs used under this license must be
   publicly available, and public notice provided of means to obtain
   said source code.

5. The publicly available source code under clause 4 must either be
   US Govt work not subject to copyright or be copyright and
   made available according to the terms of any version of the GNU General
   Public License or the GNU Lesser General Public License as
   published by the Free Software Foundation, 59 Temple Place, Suite
   330, Boston MA 02111.

Note that there is nothing in clause 4 about distribution. If Bad
Company is practicing the patent (I think that's the right phrase) in
its extensions, then it must make the source code for all programs
that constitute such practice public by clause 4. And, by clause 5 it
must make these G3 (GPL, LGPL, or govt. produced). If Bad Company is
including enhancements covered under its patent, that's OK, provided
that this is compatible with G3, presumably via a patent license that
is similar to this one.  If it is incompatible with G3, then it
is incompatible with this license. So, the use you describe should
be precluded.

> 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.
> 

As I've said. My goal here is to have a license that precludes
such activity, regardless of who is right in the debate about
whether GPL itself precludes such activity.

> 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.
> 

I thought about that for a while too. I am very much in favor of open
patent licenses. I really see two different animals here, so I think
two different licenses makes some sense; however, I am open to the
possibility that there could be a single license covering the above
issues as well as all the open patent pool concerns etc. But, I think
there are a lot of things to be hammered out before that is feasible.
On a practical level I have software that is ready for distribution
virtually now but needs a license to move forward. I think what I have
proposed is less ambitious in terms of legal novelty than patent pools
and thus may have a prayer of getting out soon. I am just hoping the
open source community can spot any holes or implications I missed
before going ahead. As such, I hope you will either explicitly
acquiesce or shoot down each of my responses to your comments above.
Thanks for your input, I look forward to further responses.

aloha,
Paul

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