Suggested addition to the open-source definition

[Matthew Garrett]

On Mon, Apr 24, 2006 at 10:48:15AM -0400, David A. Temeles, Jr. wrote:

> Your thesis is that open source software licenses should not be used as a
> weapon to defend other IP rights.  In other words, if company "A" asserts
> its "non-software" patents against company "B", company A's license to
> company B's open source software should not terminate.  

Indeed.

> First, what does the phrase "unrelated to the field of software" mean?  Are
> the mechanisms upon which software is executed unrelated, or related to the
> field of software?  After all, one cannot execute software in a vacuum. 

I'll be the first to admit that the wording needs work. I'd consider the 
line to be whether the rights can be considered to be attached to the 
software itself, or the rights absolutely necessary to use that 
software, but would welcome suggestions on this point.

> Second, is company B restricting company A's ability to exercise rights
> "unrelated to the field of software" if the terms of the open source license
> automatically terminate upon A's assertion of patent rights against B?

If those patent rights are unrelated to software, then I'd think so. The 
second clause was intended to clarify that.

> Third, the language of your proposed Section 11 goes beyond the patent arena
> and would preclude the automatic termination of the license in the case of
> copyright infringement, trademark infringement, trade secret theft, etc.
> Are you proposing that company A should be able to steal company B's trade
> secrets without suffering an automatic termination of the license?  I doubt
> this is what you intend.

An interesting question. To a large extent, yes, that is what I intend. 
The legal system already provides protection for that eventuality - I 
don't believe open source licenses should also be attempting to do so. 
But I'm somewhat less concerned about those issues, and can see the 
other side of the argument - a license with a clause along the lines of 
"If you commit a legal offense against the licensor, this license will 
be immediately terminated" wouldn't strike me as terribly offensive.

I think that's somewhat covered by the existing language. I don't 
believe there's a right to trademark infringement or theft of trade 
secrets.

> Fourth, in most circumstances company A is in control of its technology
> plan.  Company A chose to use company B's software under an open source
> license either because the software was superior to anything else in the
> market, the price was right, or it did not want to re-create the wheel.
> Company A could instead have chosen to develop its own solution, to license
> a solution from a third party, or to license company B's solution under a
> commercial, royalty-bearing license.  Company A also is in a position to
> determine whether it's continued use of company B's software under an open
> source license is more important than asserting its patent or other IP
> rights against B.  Company A has the freedom to either forgo the IP suit, or
> to replace company B's open source software before it initiates a suit
> against B.  What you are in effect proposing is that company A should be
> able to assert patents, copyrights and any other IP rights against company B
> while continuing to benefit from company B's investment in the open source
> software.

That's precisely what I'm proposing, and I think that that's part of 
what has defined the open source movement. Historically, the only 
real restrictions that have been considered acceptable are ones that are 
seen to either benefit or protect the open source community (such as 
copyleft or the MPL's patent license termination), with restrictions 
that benefit the original software (such as the QPL's grant of a 
reciprocal license for modifications). Language like the APSL's goes 
much further than that. The cost of a patent license to Apple is 
arguably much greater than the cost of any given piece of software under 
the APSL to someone else - in the typical case, there is a large 
disparity in the value of what is given and received.

> Fifth, you may be thinking of situations in which a fortune 500 or other
> large publicly traded firm is company B (given your example using Apple).
> What if company B has 10 employees and revenues of $1M, while company A is
> Microsoft?  Microsoft could continue using company B's software to make
> millions while it buries company B in insurmountable legal expenses...

I agree that this is a real issue, and agree that reformation of certain 
more irritating aspects of the US legal system would be beneficial. I'm 
not convinced that using open source licenses is the right way to 
attempt to avoid those issues, though.

> I would like to discuss this issue in greater depth as there may be
> reasonable restrictions on patent enforcement that a majority of those in
> the open source community can reasonably adopt.  I do not think that the
> community as of yet is near any such resolution.  Maybe it never will be,
> but a rounded discussion could help to raise the community's awareness of
> the multifaceted nature of the issue...   

I entirely agree.

Thanks,
-- 
Matthew Garrett | mjg59 at srcf.ucam.org