non-aggression pacts for patents and the GPL

will at will at
Mon Nov 24 22:22:41 UTC 2003

All --

I'm Will Rodger, and I'm director of public policy at the Open Source and
Industry Alliance. We're a project of the Computer & Communications
Industry Association here in Washington DC.

I have a question for y'all.

Paragraph 7 of the GPL talks about patents and their effects on GPL'ed
code. Among other things, it says that one should cease distribution if
patent litigation becomes an issue:

"7. If, as a consequence of a court judgment or allegation of patent
infringement or for any other reason (not limited to patent issues),
conditions are imposed on you (whether by court order, agreement or
otherwise) that contradict the conditions of this License, they do not
excuse you from the conditions of this License. If you cannot distribute
so as to satisfy simultaneously your obligations under this License and
any other pertinent obligations, then as a consequence you may not
distribute the Program at all. For example, if a patent license would not
permit royalty-free redistribution of the Program by all those who receive
copies directly or indirectly through you, then the only way you could
satisfy both it and this License would be to refrain entirely from
distribution of the Program."

That said, what would any of you make of what lawyers call reciprocal
non-assertion pacts? That is, would it be a good thing if Company X let
anyone use its patented, open-source technology on a royalty-free basis
_as long as_ that person or group agreed not to sue Company X for patent

At first blush, this seems a pragmatic approach to the issue of patents.
If open source projects do not themselves amass patent portfolios, then
non-assertion agreements would seem to hold them harmless from the patent
litigators of Company X.

Suppose you accepted such an arrangement as an open source developer.

1 -- Would this comport with the GPL and open source licenses generally?

2 -- Would you take such a deal, assuming the contract was properly
drafted and you believed Company X was acting in good faith?

3 -- For both questions, if not, why not?


Will Rodger
Director Public Policy
Open Source and Industry Alliance

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