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On 02/20/2012 09:00 AM, Carl Boettiger wrote:<br>
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cite="mid:CAN_1p9wMw7ha9+60rbR5WDqXugFCV71gJetqjcF+2HwoXvrkjQ@mail.gmail.com"
type="cite">
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I believe some have also argued that [patent] is in fact not out of scope of MIT & BSD. Is this true?
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There is a doctrine in law known as equitable estoppel. Equitable
means "having the quality of fairness", and estoppel means "stop".<br>
<br>
Consider that Alice licenses software to Bob, using a simple license
like MIT or BSD. Bob then uses the software, believing that he has
Alice's permission to do so. Alice then sues Bob for infringement of
her patent claims which are exercised in the same software.<br>
<br>
Under the doctrine of equitable estoppel, Alice is stopped from
prosecuting such a claim against Bob. Bob's action of using the
software was carried out <i>with Alice's permission</i> (we use the
technical word "acquiescence" for this permission), and thus she is
stopped from prosecuting an action that she permitted.<br>
<br>
This is generally held to apply to licenses simple like BSD or MIT.
Various licenses are worded to prevent an estoppel, but not those
two.<br>
<br>
My point is that abandonment of copyright doesn't equal permission
to use, so we might not have this estoppel in the case of a simple
dedication to the public domain.<br>
<br>
Many jurisdictions (I think including the U.S.) don't have law
affirmatively supporting one's right to voluntarily dedicate their
work to the public domain. We have little case law to tell us how
courts have handled this issue previously. So, we don't really know
if a court would see that such a dedication implies an estoppel of
any kind.<br>
<br>
Larry Rosen is correct in pointing out that the doctrine of
equitable estoppel might not apply in all jurisdictions. It also
might not apply to all subject matter, such as patents, in
jurisdictions where it is used. However, the United States is one
where it has substantial history of successful use in cases.<br>
<br>
Were CC to add specific language, it would probably apply across
more jurisdictions than any implication.<br>
<br>
John Cowan (I think) also made the argument that "use" is a legal
term related to patents rather than copyrights, and thus the MIT and
BSD licenses must <i>mean </i>patents when they say "use".
However, I see the word "utilize", specifically regarding software,
in U.S. copyright law {17 USC 117(a)(1)}, so it's unclear if John's
argument would win.<br>
<br>
Thanks<br>
<br>
Bruce<br>
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