GPLv3

Comment 2132: copyright holder needs not shield users?

Regarding the text: If you convey a covered work, knowingly relying on a non-sublicensable patent license that is not generally available to all
In section: gpl3.licensingpatents.p1.s1
Submitted by: oliva on 2006-11-02 at 21:20 EST
0 agree:
noted by oliva on 2006-11-02 at 21:20 EST:

Since 'you' refers to the licensee, it doesn't apply to the copyright holder. Therefore, a copyright holder that obtains a patent license for itself, its customers and non-commercial Free Software developers, may distribute software that implements the patent under the GPL, get community help and sympathy, while at the same time setting a monopoly for their customers, since other commercial Free Software developers won't be covered by the patent license, and the copyright holder will have no responsibility to shield them from the deal. This is a very real risk, after the deal Novell and Microsoft announced today.

noted by oliva on 2006-11-03 at 00:36 EST:

The strategy seems pretty clear to me now, after pondering on it further (X and Y replaced for the company names to protect the guilty :-)

- X obtains software patents

- X licenses them to Y and promises not to sue Y, Y's customers and other non-commercial Free Software developers that use Y-distributed software that implement X's patents covered by the agreement

- Y creates a piece of software that implements one such patent and releases it under the GPL

- Y gets community goodwill and gets their own customers happy

- Y's software gets contributions from various volunteers, and Y insists that they assign copyright to Y before the contributions are accepted

- Y's software is a resounding success, and every user starts demanding that for compatibility with X's widely-used software

- every software distributor, commercial or otherwise, starts shipping Y's software as well

- X launches a coordinated attack, suing every such commercial distro, as well as their customers that are not Y's customers, for patent infringement

- users are scared away from this Free Software thing because it's too dangerous to have to face X in court, or run to Y for cover

- Y gets a Free Software monopoly and profits handsomely from that

- X can tell everybody else there's competition, while they scare customers away from the competition, profit handsomely from Y's patent licensing fees and from litigation with other commercial distributors of Y's software and their customers, sets back the piece of software that used Y's software for compatibility with one of X's major cash cows, and attracts scared customers back to its own product.

Sounds like a great deal for both, and AFAICT Y is not violating the GPL, v2 or v3, in any way, and X never got even close to Y's software to be affected by its license.

noted by oliva on 2006-11-03 at 01:09 EST:

In the initial note, I missed an essential bit in my explanation: Therefore, a *sole* copyright holder

if there are multiple copyright holders that exchanged code among themselves, I get the impression the bug cannot be abused. But then, IANAL.

noted by jamesgnz on 2006-11-03 at 10:39 EST:

Yes, including a patent license would be better, since it would apply to sole copyright holders too.

noted by oliva on 2006-11-03 at 11:55 EST:

No, a patent license can't be included if the copyright holder doesn't have the right to include it.

OTOH, forcing the copyright holder to shield anyone might impose a duty that is too onerous for those who released code under GPLv2 or above.

I'm inclined to suggest that the best balance is to include an assertion that the copyright holder, for as long as it offers the program under this license, is not aware of any third-party patent that would require shielding of downstream users by distributors.

noted by jamesgnz on 2006-11-03 at 20:03 EST:

/ No, a patent license can't be included if the copyright holder doesn't have the right to include it. /

Well no, but if they do have the right to do so (at no cost), then they should.

/ I'm inclined to suggest that the best balance is to include an assertion that the copyright holder, for as long as it offers the program under this license, is not aware of any third-party patent that would require shielding of downstream users by distributors. /

That would mean that if a required patent were discovered (and perhaps through no fault of any copyright holders), the GPL would allow anyone except copyright holders to distribute the program (not a problem if there is only one copyright holder, since they wouldn't need permission from anyone, but otherwise a problem). Anyone distributing the program could be done under patent law, but the copyright holders could additionally be done under copyright law too (by any other copyright holders).

noted by oliva on 2006-11-03 at 23:29 EST:

Hmm, good point. So, how about "Similarly, the copyright holder promises to sub-license or otherwise shield downstream users from any third-party patent claims the licensed software knowingly infringes upon and the copyright holder is protected from by a non-sublicensable patent license, as long as the copyright holder distributed or offered to distribute the software longer than 60 days after becoming aware of its own need for such patent license to perform distribution of the licensed software."

Rationale: Places the copyright holder in the same position as every other downstream distributor. Does not burden copyright holders that are unaware of patent infringements, and gives them some time to stop distributing the software after they learn about the need for the license, in order to avoid the requirement of shielding downstream users. The wording about needing a license themselves is to protect developers in a location where a software patent doesn't apply from having to shield users on locations where it does. It's probably redundant, but otherwise even the intermediate distributor might benefit from such a clarification.

noted by jamesgnz on 2006-11-04 at 13:57 EST:

/ ... as long as the copyright holder distributed or offered to distribute the software longer than 60 days after becoming aware of its own need for such patent license to perform distribution of the licensed software /

This is a sensible addition, but it would be better, I think, if it applied to any license breach that could concievably be unintentional, e.g. perhaps by inclusion in Section 8.[4] Termination. (See Comment 1567.)

noted by oliva on 2006-11-04 at 23:00 EST:

Err... It doesn't make sense to terminate the rights of the copyright holder ;-)

noted by flaschen on 2006-11-21 at 20:31 EST:

The GPL can only demand things of the licensees, not the initial copyright holder. Thus, it is actually possible to license something under the GPL but provide no source.

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