discuss: Open Methodology License

Lawrence E. Rosen lrosen at rosenlaw.com
Mon Dec 2 18:25:39 UTC 2002

Hi Pete, 

You are confusing aspects of copyright, patent and trade secret in
impossibly complex ways.  And it may be helpful for you to get a clearer
understanding of prior art as it affects both patent and trade secret.  

I suggest you discuss your business objectives with an attorney before
you jump into the difficult task of writing (or adopting) a license.  

/Larry Rosen

> -----Original Message-----
> From: Pete Herzog [mailto:pete at ideahamster.org] 
> Sent: Monday, December 02, 2002 12:52 AM
> To: David Johnson
> Cc: license-discuss at opensource.org
> Subject: Re: discuss: Open Methodology License
> Hi,
> I didn't consider that the methodology would be patentable 
> but you're right, it is.  To me it seemed obvious and not 
> something worthy of a patent (like one-click shopping I 
> suppose).  However, I don't think we would survive prior art 
> if we did patent and even if we did what we want is the exact 
> opposite of a patent-- free use for everyone.
> What I need then is a license to prevent others from 
> publishing the methodologies in whole or part and how they 
> are distributed.  We want people to use the "trade secret".  
> We don't want it to be a secret, rather we want to encourage 
> standardization.  Perhaps a form of EULA is needed?  Although 
> that's how I saw the GPL is some regards-- the copyright 
> takes away your rights and the GPL as EULA gives you most of 
> them back with provisions.  Which is why I'm seeking an open 
> license format.  In this regard I do hope that OSI sees this 
> as an opportunity to blatantly promote prior art for 
> methodologies which call attention to themselves as standards 
> while protecting the copyright in the printed word.
> You say it's not for OSI but I hope you reconsider that the 
> copyright portion of the license is what applies to 
> methodologies and not that I am trying to use the license in 
> place of a patent or trade secret.
> Sincerely,
> -pete.
> On Mon, 2002-12-02 at 05:27, David Johnson wrote:
> > On Sunday 01 December 2002 02:45 pm, Pete Herzog wrote:
> > 
> > > 2.  The OML is similar to the GNU GPL with the following 
> exceptions 
> > > which pertain specifically to Methodologies, which are tools in 
> > > their own right, intellectual property that is neither 
> software nor
> > > documentation:
> > 
> > I'm not sure that a "methodology" is a copyrightable work. 
> They should 
> > be more
> > appropriately protected by trade secrets or patents.
> > 
> > USC 17, Sect. 102, lists literary, musical, dramatic, pictoral, 
> > graphic, and
> > other works. But it does not list methodologies. It 
> explicitely does not 
> > cover "any idea, procedure, process, system, method of 
> operation, concept, 
> > principle, or discovery".
> > 
> > Although there may be merit in an open license for methodologies, 
> > especially
> > since there are several companies willing to play free and 
> loose with 
> > copyright laws, such a license is not in the scope of the OSI.
> > 
> > In my lay opinion...
> --
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