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Re: Patents again

From: Abdullah Ramazanoglu
Subject: Re: Patents again
Date: Sun, 10 Oct 2004 05:21:11 +0300
User-agent: Pan/ (As She Crawled Across the Table)

begin  David Kastrup <> dedi ki:
> Abdullah Ramazanoglu <> writes:
>> begin  David Kastrup <> dedi ki:
>>> That is like saying by calling a plumber you automatically pay him.
>>> This isn't so: you still have to do the payment yourself, and the
>>> plumber can't just pilfer the amount from a wallet lying around.
>> Would it solve the problem if a new clause in a future "GPL v.3"
>> explicitly stated that any patented code is unenforceable against
>> any GPL project?
> No.  Only the patent holder can grant a licence.
>> A patent holder accepting such a GPL v.3, would *explicitly* have
>> granted a non-restrictive patent license for all the GPL codebase, I
>> think.
> No.  You are always talking about "codebase" and similar wishywashy
> terms.  Licences apply to individual copies.  Only for the copies a
> patent holder distributes does he have to obey the GPL.  And only the
> original copyright holder can hold him to it, not the recipient.

Actually it was not wishy. What I meant with codebase is that due to the
recursive and repetitive effect of GPL, any part of software released in
GPL is free to be copied into any other GPL software with the same terms.
So, if a right or restriction applies to any single individual GPL'd copy
of a program, it applies automatically to all the GPL'd programs that it
might propagate to, and potentially to all the GPL programs. Hence the
term "GPL'd codebase".

>>>> But it doesn't end here. What if they indirectly and from multiple
>>>> untraceable sources sneak patented code into GPL codebase? It should
>>>> be easy to do, at least I can readily think of a couple of ways.
>>> It does not matter how the code got there.  The patent holders have
>>> a right to payment if their code gets used without a licence,
>>> regardless of whether they put it there themselves or not.  You can
>>> sue them to stop distributing code under the GPL without a
>>> non-restrictive patent licence.  But you have to sue them: there is
>>> no automatism involved.  In particular, the party receiving the
>>> code has no base to sue for a patent licence, only the party that
>>> has the copyright on the original GPLed code can sue for
>>> compliance.
>> However, if the patented code got there indirectly, then patent
>> holders would be on pure legal ground, and you wouldn't even be able
>> to sue them.
> I repeat: it does not matter how the patented code "got there".  You
> can force the patent holder (and everybody else) to retract any copies
> he had been distributing without complying to the GPL, by including
> non-licenced patented code.  Regardless of _who_ distributed the stuff
> with unlicenced patents in it, you can force him to stop that.  Only
> the patent holder has the additional option of continuing to
> distribute _if_ he licences the patent for that use.

If it's indirectly got there, more precisely if an unknown 3rd party has
stolen a patented code (as it will be presented to the court) and it's
proliferated in many critical OSS projects, and those packages got used in
vital parts of every distribution of GNU/Linux, thus inevitably used by
every GNU/Linux user, then it's not the patent owners responsibility to
remove the patented code from the packages involved. The patent owner has
become aware of this unfortunate situation just last week, and they don't
even have to know what a GPL is. Patent owner could simply sue distros
and large users. It's the users' problem to sort it out. Since they won't
be able to (a) quit using the programs, (b) find a remedy in short time
for long-time proliferated multiple patent violations, they will have to
end up paying for them. No way, AFAICS.

If it's directly got there then it's a controversy. At worst, there is a
counter-suit possibility. At better, the patent owner would be seeking
for his rights, which directly come from his standing on the illegal
grounds in the first place, which in turn (at least to my logic) should
invalidate his claims. It's like a burglar sueing a ranch owner for the
bite of an unleashed dog. At best, the patent owner would go to jail for
fraudulent conduct.

>> As for the case where it got there directly, I'm surely not a lawyer,
>> because I simply cannot understand how a GPL-bound patent owner could
>> enforce their patent on any GPL program.  By distributing their
>> patented code under GPL, they're explicitly stating that anyone can use
>> it, modify it, and redistribute it under the same conditions, freely in
>> both senses.
> No, they aren't doing anything of that sort.  That's only in case when
> they are _complying_ with the GPL.  But when they are merely _claiming_
> compliance but not licencing the patents, then the recipients may not
> redistribute the code further, just like it was not allowed to be
> distributed in the first place.

A debt resulting from an illegal stance. Add deliberation to it, and I
can't imagine a judge on this planet deciding in favor of the patent
owners. Though, IANAL. I'm trying to apply simple obvious logic.

>> They're *explicitly* giving the permission and freedom for their
>> patented code.
> Only to their customers.

With the freedom to redistribute it under the same terms, as long as it's
GPL. If I, a customer, receive the "right X" under GPL, doesn't the same
right also apply to anyone I redistribute it, and doesn't the "right X"
propagate recursively?

>> How then, can they ever go to court and claim that I cannot use their
>> code without paying to them for their patent?
> If I am a direct customer of theirs and buy stuff from them they claim I
> can use, then they can't sue me.  But if their licence did not extend to
> non-customers and I use the stuff nevertheless, for example by taking
> code from the program and putting it in to a completely different
> program, they can sue me.  If they sue me, the copyright holder of the
> GPLed original can in contrast sue them for breach of GPL, but there is
> nothing I can do without a valid licence from them.

I would understand it if the patent owner plain stole the GPL code, added
their patented code to it, and then sold it under a non-GPL scheme. Then
it would be a case of whether some code is really stolen or it just
happens to look the same. But if they explicitly put the GPL headers into
every source code of theirs, advertised it in README, and put the GPL
wording itself into their package, then how can they make their license
(GPL) limited to a specific customer of theirs? If it is GPLed, then how
can they impose "a valid license" other than GPL.

>> It's beyond me.
> If your neighbor steals apples from the grocery store, this does not
> give you leave to steal pears from him.

To me, it's more like stealing apples from the grocery store and then
protesting the grocer for selling rotten apples, in that the protester is
standing on the illegal grounds in the first place to have anything to

Or, as a bit more precise example, exchanging a sack of sand for some
apples with the grocer, and seeing that grocer used the sand in the
foundation of his newly built store, calling the deal off and demanding
either the sand back, or the third storey of the store.

To my limited law understanding, at least of the Turkish laws, a
commercial transaction, once completed, cannot be cancelled without the
consent of *both* parties. A patent owner reading the GPL and deliberately
introducing their patented code into a GPL'd program and then distributing
it, *is* conducting a transaction by act. They may deny it all they want.
But their denial doesn't negate their consent by act.

Anyway, I'm not here to argue about it, nor am I a lawyer. I simply want
to understand it. And I want to understand "the right thing" dimension of
it. Specific laws of specific countries are of secondary importance to me,

- This is a worldwide issue. Each country may have slightly different
laws, but "the right thing" is universal.

- Laws are for people, not the other way around. So understanding how to
cope with the law is secondary to me, to understanding how the law should
really be.

Certainly I don't promote living in a dream world, but understanding the
key issues would help me to see the right and wrong points of laws, which
hopefully can result in placing the puzzle pieces correctly for a sound
legal case. Also we might come to know which laws of what country should
be changed in which way. At least it sheds light on the issue so that we
can more clearly see what needs to be done about it. No ship advances
without a direction, no?

And last but not least, your replies left me in a darkness. GPL v.2 won't
do, v.3 won't do, direct/obvious/deliberate sneaking won't do, then what
would do? Am I to understand that OSS is a sitting duck waiting to be shot
by patent cowboys? Is there any remedy to this problem (of patent owners
deliberately sneaking patented code into OSS directly or indirectly and
then making a SCO of it) that you would offer? Or, is there no remedy?

Abdullah        | aramazan@ |
Ramazanoglu     | myrealbox |
________________| D.0.T cöm |__

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