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

Cinly Ooi cinly.ooi at
Fri Jun 11 13:16:42 UTC 2010

Dear Harri,

I am not a lawyer.

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* *Softwa
> *re+ *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.
In one sentence, you want to exclude a group of people from using your
software+. In your particular case, commercial, for profit group, or a
subgroup of it.

> 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 - Innovation is a novel method unpublished anywhere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).
Not really sure copyright will protect you here. It sounds to me that you
are worry about disclosing the method of doing something. One can always
come out with a non-copyright infringing implementation of your method,
simply by reading any publication. With publication, I meant either in
source  code or in journal or trade magazine.

Like Mark, I will say you probably have to explore patent or other

I think your problem is more fundamental : The stakeholder believe that they
need to exclude competition. The way to work around it is the write down
what the fear is and see whether it is rational _and_ reasonable.

I am in a university setting. Before open source licenses become the norm,
academic pioneers with the intention of making their software available to
others usually convince their university to release the software under a
non-commercial license. The exact licensing terms differs. All will say
academic research ok, selling for profit no. Some permit commercial research
use, some not. That might be a good first step although your license will
not be open source license.

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.
> One basic tenet of Open source is non-discriminatory,  even towards your
competition or someone you disagree with.

Best Regards,

I promise to take all due care and respect for you email, but any T&C you
attached to your email is NON-binding on me.
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