Questions about patents and open source licences

[Philippe Verdy]

> De : Erik Wikström [mailto:Erik-wikstrom at telia.com] 
> Envoyé : dimanche 30 mars 2008 15:35
> À : license-discuss at opensource.org
> Objet : Questions about patents and open source licences
> 
> Hello, and sorry if this has been discussed to death already 
> but a search of the archives did not turn up any recent 
> answers to my questions.
> 
> Question 1:
> 
> It is my understanding that the EU does not recognise pure 
> software patents but since we live in a connected world where 
> some countries (the US for one) do. Imagine that I (living in 
> the EU) write a piece of software and publishes it on the web 
> under a the BSD licence and it later turns out that it uses 
> some technique covered by a patent in the US, how will that affect me?
> 
>  * Can I be sued (even tough I have done nothing illegal 
> where I live)?

Nothing illegal only if you distribute the software in EU. Now the question
remains when you'll export the software in US, or when a US user will try to
use your software: both you or the user could be sued in US.
As long as you don't do anything in US, you risk nothing: the US software
patent does not apply to you.

Note that the question is more debatable than this: the patent-free area is
restricted to your own country (which defines the law applicable to you).
I'm not sure that you can still even export your software within the EU
itself, because the EU does not degine a law extending your national right
to the rest of the Union, but may be your national law extends this right
(my opinion is that the only national rights that are extended to other EU
countries are those mandated by the treaty, and ratified in the instruments
by other EU member countries.

However I have not seen any field of application for extending your
patent-free protection for software; the patent system is not part of the
Union, it is an international agreement governed by ratification instruments
deposited now at WIPO (but previously under the Bern convention).

>  * Even if I on my site add a disclaimer disallowing 
> downloads/use/etc.
>    in countries which allow software patents?
If you add such thing, you are creating a discrimination, and your software
will not be free for all users.

>  * Can I protect my self in some other way?

Yes:
* don't export your software directly: host it on a site hosted in your own
country;
* don't offer any guarantee or patent-free protection to your users: it's up
to the remote downloader to verify that he can safely use the software and
in which conditions. He may need to pay royaltees or require a prior
agreement by the patent holder, but not you.

All you can do is to publish a statement indicating that, to your knowledge,
your software does not infringe any right applicable to you or other users
in your country, and you are making it available to anyone without prior
condition or agreement required by *you* to use your software.

The soft of statement that comes within the GPL about the absence of
warranty is an excellent way to prevent you becoming liable for the risks
taken by others. But it must be clear to others that if such risk exists, it
cannot come from you: you won't threaten your users to claim them for
damages if ever they have used a software you made but did not provide
directly to other users that may infringe others' rights, and each user will
assume the risks and the associated costs.

That's my opinion.

But now, publising on the Internet is not an easy task: you have to know
where to host your software. Look at the contract of the hosting site to see
which national law governs its use: it will indicate you where you are
exporting the software, but also this will indicate to others in which
country the software they are downloading is hosted (so they will know they
are actively importing it, and they are taking the risks themselves by
initiating this import). The only thing that you are liable is the act of
publishing: if you don't export it when doing it, nothing wrong can apply to
you, the software remains in the same legal condition.

Be careful if your hosting provider ever changes its contract with you
(notably after it has been bought by another company in another country:
your existing contract may change at any time if you subscribe to some newer
option with a new contract that overrides your existing one: as soon as you
accept the new contract, the previous contract will become void, and the new
contract may change the juridiction, in which case you may have to delete
the hosted content in a reasonnable time, if it is now illegal for exporting
it to that juririction where it will infringe an applicale patent or where a
right owner may claim royaltees from you).