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

[Cinly Ooi]

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 - Innovation is a novel method unpublished anywhere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
> http://en.wikipedia.org/wiki/Commercial_open_source_applications. 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
restrains.

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,
Cinly

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