non-aggression pacts for patents and the GPL

[Daniel Carrera]

Hello Will,

Note: I am not a lawyer.  I am simply a user with a good understanding of 
copyright law and open source licenses.


> 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
> infringement?

As a developer, I like the idea and I would be willing to release use and 
incorporate code released under a GPL-like license that had that 
condition.

Personally I think that software patents are a huge problem and I would be 
happy if they all just went away.  An agreement like this one would, imho, 
be a positive step.

Having said that, some people might feel happier if you replaced the word 
"patent" above by "software patent".  I am not one of those people.


> Suppose you accepted such an arrangement as an open source developer.
> 
> 1 -- Would this comport with the GPL and open source licenses generally?

It would, as far as I know, not comport to the GPL, since it has a 
clause that says that you are not allowed to add additional restrictions.  
Most open source licenses don't have this clause though.  The only 
licenses that do are the GPL and LGPL.  But these are the most important 
licenses since they cover most of Free/Libre Open Source Software.

Now... this does not mean that the idea is not feasible.  You *might* be 
able to write a license that is not the GPL but is compatible with the 
GPL.

I am not sure how such a license would look like.  The license would have 
to permit re-distribution of the code without any restriction in addition 
to those of the GPL.

We'd need to think about this.


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

Yes.

Notice your clause : "you believed Company X was acting in good faith".

It does depend somewhat on the history of the company.  If Microsoft did 
that I would not trust them.  But for most companies, assuming that the 
contract is properly crafted, yes I would.

I'll think some more about (1).  If I come up with anything useful I'll 
let you know.

Cheers,
Daniel.



On Mon, Nov 24, 2003 at 02:22:41PM -0800, will at osaia.org wrote:
> 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
> infringement?
> 
> 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?
> 
> 
> thanks,
> 
> Will Rodger
> Director Public Policy
> Open Source and Industry Alliance
> 
> 
> 
> 
> 
> 
> 
> --
> license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3

-- 
Daniel Carrera | Top 100 things you don't want the sysadmin to say...
PhD student.   | 
Math Dept. UMD | 19. hey, what does mkfs do?
--
license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3