what defines source code in (A)GPL ?

[Ben Tilly]

On Mon, Jul 12, 2010 at 2:35 PM, Harri Saarikoski
<harriers at windowslive.com> wrote:
>
>
>> From: andrew.wilson at intel.com
>> To: license-discuss at opensource.org
>> CC: harriers at windowslive.com
>> Date: Mon, 12 Jul 2010 10:46:23 -0700
>> Subject: RE: what defines source code in (A)GPL ?
>>
>> Harri Saarikoski [mailto:harriers at windowslive.com] wrote:
>>
>> ➢ I.e. does AGPL make a distinction between Code and the Idea itself ?
>>
>> Well, yes, because just to review the basics, the Code is a work of
>> authorship
>> and subject to copyright, and the Idea is an invention and potentially
>> subject to
>> patent protection. (Flames about SW patents in general are off-topic
>> for this list.) When you distribute
>> your Code under (A)GPLv3, you are granting a $0 license to practice the
>> Idea (e.g. any patents you may have which read on the Code) in (A)GPLv3
>> covered code. Many people believe there is an equivalent patent grant
>> implicit in (A)GPLv2.
>
> I'm slightly confused. First I seem to be given leeway, that Idea is yours
> while Code is open source.
> I.e. no rival will copy the Idea, only plagiarism allowed is the revised
> code (under one framework).
> Then something is attempted to be taken aback from that true argument by way
> of stating the obvious (already understood),
> i.e. that users of the revised code (the original framework under which the
> innovation was implemented)
> stand to gain every right from the innovation.

The answer to your confusion is this.  Nobody but the patent owner may
give permissions on your patent.  However satisfying copyright
licenses may require you to agree to things - such as licensing your
patent.  If you do not agree to licensing your patent, you should not
agree to the copyright license.

> Which is true ? Let me materialise the underlying subject matter with yet
> another analogy:
>
> I have (as if, this is not the real application domain) developed a revision
> of mysql (which is subject to GPL).
> Can I or can I then not expect Oracle to not only download that mysql+
> enhanced version
> but also copy-copy the Idea behind that revision / innovation into Oracle
> proprietary product line
> (thus rendering once again my efforts to further the cause of open source
> minor operatives
> in whose network I find myself in, and everything good flows to further
> proprietaries
> who already have had their fill ?)

According to my reading of the text of section 11 of the GPL v3 (I am
not a lawyer, so take this with appropriate tablespoons of salt), the
patent permission granted is ONLY granted to copyright derivatives of
the version distributed under the GPL v3, and ONLY on patent terms
required to run that version of the software.

Therefore by my reading, your release of a patented version would not
give them permission to infringe on the patent in proprietary
products.  Nor, interestingly, would it give them the right to
infringe on the patent within their version of MySQL unless they
copied your code in first!  (They can modify after copying, but they
have to copy.)

This could have interesting consequences with dual-licensed open
source projects.  People contributing to a fork could use patent law
to give their forked (purely open source) version capabilities that
the original version is barred from ever implementing.

Of course this only works if you've applied for the patent before
releasing the code.  And free software folks are notoriously hostile
to software patents.

> Do Oracle have the sovereign right to copy a method from mysql ?

If the copyright status is what it used to be, they do but only
because they are the sole copyright owner.  (That status is important
if you're going to dual license an open source project.)  Otherwise
they'd have no more right than anyone else has to copy from that
codebase to any other.

> I hope yet to find an *exact* analogy for my 'problem', in which case I hope
> people here have knowledge of a legal precedent
> or a firm legal principle, at least.
>
> best, Harri
>
>>
>> Generally speaking, I don't see how you can both protect your Idea from
>> commercial use /and/ release an implementation under an OSI-approved
>> license
>> without contorting yourself into an unnatural and probably indefensible
>> position.
>>
>> IANAL, TINLA.
>>
>> Andy Wilson
>> Intel open source technology center
>
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