non-aggression pacts for patents and the GPL
Lawrence E. Rosen
lrosen at rosenlaw.com
Tue Nov 25 18:28:34 UTC 2003
I'm not sure why you mentioned paragraph 7 of the GPL, but not the fact that
many other open source licenses ALREADY have even more effective provisions
to prevent patent litigation -- with precisely the result you seek. It may
be that Company X doesn't realize this.
I suggest you look at the following license provisions on the OSI website:
Mozilla Public License § 8.2 and 8.3.
Common Public License § 7
Open Software License and Academic Free License § 10
These are just examples. Many open source licenses do this.
> -----Original Message-----
> From: will at osaia.org [mailto:will at osaia.org]
> Sent: Monday, November 24, 2003 2:23 PM
> To: license-discuss at opensource.org
> Subject: non-aggression pacts for patents and the GPL
> 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
> 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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