Proposed new OSD item - patent termination

Matthew Garrett mjg59 at
Sat Apr 9 16:46:57 UTC 2005

On Sat, 2005-04-09 at 07:35 -0700, Brian C wrote:

> As others have mentioned, using similar terms as a patent defense for
> free software could be a strong defense for the community. If, for
> instance, bringing a patent infringement suit against a free software
> developer terminated the plaintiff's licenses to a large amount of free
> software, this could be such a strong deterrent that almost no one would
> bring such a suit.

Indeed - however, the question is whether it's reasonable to restrict
activities which are entirely reasonable in the hope that this will help
prevent less reasonable activities. A balance has to be struck. I don't
think anyone would argue that suing Apple over a hardware patent
infringement is in any way unreasonable or detrimental to free software.
As a result, it seems odd to forbid it in an open source license.

> There would be other concerns about such a proposal and the details
> would matter, but closing the door to such a defense before thinking
> about it from this side too would be rash. I will say though that I
> might agree with the heart of your point, I'd just like to see
> "unrelated" defined adequately. I think that would be difficult.

There's two possible cases - termination of copyright license on any
patent suit, or termination of copyright license on software-related
patent suits. Defining it clearly would depend on which of these we
wanted to forbid.

Matthew Garrett | mjg59 at

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