protecting an Innovation from unlicensed abuse by a rival commercial 3rd party

Harri Saarikoski harriers at
Thu Jun 10 13:33:53 UTC 2010


My question concerns an AGPL covered OS software (below Software) developed by Company#1. We (this writer) are Company#2 who extend this Software to produce Software+ by way of an Innovation whose copyright Company#2 solely owns. Company#2 and Company#1 are partners that want to market and sell Software+ in full agreement and cooperation. Software+ is to add great value to end clients that Software of any operator in our field (OS or proprietary) are not able to. Company#1 and Company#2 have no licensing issues between them. It is rather our common interest to protect Software+ from a specific type of 'hostile' third party (Company#X). Worst case scenario is: Company#X are aware we're developing the Innovation, so they most likely wish to copy the Innovation from first Software+ distribution, continue to implement it in their next distribution of their own software, and sell the Innovation free under their own GPL license. We also have non-OS rivals who may freely pick it up, patent it and there goes a life's work in vain ! This (proprietary intervention) is in fact the greater threat.

We want to emphasise that maximal exposure of both Innovation and Software+ is something we (the partners) absolutely want to implement. So we have no fundamental problem with copyleft and third party 'freedom to sell' as regards both academic and commercial clients. However, we wish (out of understandable reasons I hope) to prevent any Company#X who are our commercial competitors from using the Innovation without our permission to further their own, uniquely commercial gains. While we understand how difficult it is to separate a regular ('legitimate' in the sense of this message) user from the 'other kind' ('hostile' in the intent of this message), we want to find a solution that benefits both OS community (maximal exposure via GPL) and our partnership (Co#1 + Co#2) but that sets limits to business operations of Company#X concerning the Innovation.

Key Points that define Software+ and its contained Innovation are (from GPL point of view these are likely relevant):
- Innovation requires no modification of the source code of Software. It is rather a "work that uses the GPL covered code". 
(It is specifically and only a "way of using" existing Software more effectively.)
- Innovation is in no sense a "derivative work" of Software, but "independent and separate work" in that e.g. it doesn't require any specific Software to work. 
- Innovation is in all objective evaluations a scientific innovation developed fully outside the OS community, i.e. it is a work whose like has never been done. 
- Innovation is a novel method unpublished anywhere

To sum up, we don't want to close the source of Software+ unless closing
 it is our only option to protect the Innovation from what we have here termed as 'hostile'. We are currently thinking about 'dual license' or 'functional encapsulation' models common in commercial OS as defined in While these (including 'saas') might sound ok, what we would most like to do is distribute the Full Version of Software+ to all, but still expect no harm to come to us by way of Company#X . In short, we don't believe we should be punished for making an innovation and wanting to distribute it to everyone without limitation (seems some sort of copyright should remain considering Key Points above and the nature of the Innovation).

Matter is complex and our view may be biased so anything close to legal and/or practical and/or personal experience will be well appreciated ! E.g. would there be an 
OSI-certified LA that would fit this purpose: divide regular users from commercial rivals ?
 Though I have studied GPL licenses rigorously, you may need to point out
 if I have omitted some obvious solution concerning the rights we retain if Full Version were sourceforged. 

Thanks and all the best, 
Harri E
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