Question on OSD #5

[Matthew Flaschen]

Chris Travers wrote:
> The FSF's licensing FAQ's seem to suggest that linking is equivalent,
> or perhaps sufficient to prove derivation.

I agree that linking is not /categorically/ derivation.  It appears
they've toned this down in the FAQ (I remember the more categorical
earlier versions.).  They never said it was equivalent, though, since
that would mean textual modification wouldn't also be derivation.

> That the facts in your case require a different sort of analysis.  In
> short you have to show why you should be treated differently.

This is more common than you imply.

>> You've got to be more specific.  There are half a dozen /types/ of
>> patent retaliation clauses.  And we were really just talking about
>> patent licenses, not retaliation clauses.
>>
> Ok.  Here is the classic example from the days when OpenAFS was
> released under the IPL.  It applies to any piece of critical
> infrastructure software and AFAICS applies to the ASL 2.0 and the GPL
> v3.

Okay, IBM Public License has one of the extreme versions of patent
retaliation clauses  It says:

"If Recipient institutes patent litigation against a Contributor with
respect to a patent applicable to software (including a cross-claim or
counterclaim in a lawsuit), then any patent licenses granted by that
Contributor to such Recipient under this Agreement shall terminate as of
the date such litigation is filed."

It apparently means if you initiate a patent lawsuit against IBM for
totally unrelated (probably not even FOSS) code, you lose your patent
license for the IPL code.

> Company B reads Company A's patent application, implements the feature
> and gets the contribution accepted.  This could furthermore solely be
> done as an attempt to undermine company A as a competitor.

Or, of course, an attempt to make the software better for both of them.

> Company A cannot sue anyone (even company B) over the essential theft
> of the patent unless and until they migrate away from the software
> package X.

I think that's incorrect.  But again, it depends which patent
retaliation clause we're talking about.

Under IPL, company A can't sue company B for /any/ software patent
infringement, without losing their own license for other patents in X.
However, company A can still sue non-Contributors for infringement of
this, or any other patent.

Under GPLv3, company B still can't sue company A for infringement
"alleging that any patent claim is infringed by making, using, selling,
offering for sale, or importing the Program or any portion of it."

However, under GPLv3, company B can still safely sue company A (or
anyone else) for infringing the patent through activities unrelated to
the Program.

> We can probably agree that Company B's behavior would be unethical

Well, I think software patents themselves are unethical.  The ethics of
Company B's actions would depend on the nature of the patent, their
intentions on adding the feature that violates the patent, and whether
they respond to initial requests by company A to remove the feature.

> and that the project should probably remove the questionable contributions
> when they are aware of them.

/If/ company A asks them to.

> So how do we create a patent retaliation
> clause which does not allow this sort of abuse?

I don't think you can.  I don't think company A would be able sue
company B over the Program in any circumstances.  Under GPLv3, A can
still sue B over any software patent, for other programs.

Matt Flaschen