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Re: GPLv3 comedy unfolding -- Patent licenses are legal fictions

From: Alexander Terekhov
Subject: Re: GPLv3 comedy unfolding -- Patent licenses are legal fictions
Date: Thu, 03 Aug 2006 12:31:18 +0200

[and the entire US federal judiciary is just a bunch of narrow-minded fools
("Whether express or implied, a license is a contract governed by ordinary 
principles of state contract law") in denial of Moglen's genius. They all 
should go and keep taking SFLC's/FSF's seminars until they finally get it.]

Now let's enjoy how the GPL undoes patents. In the GNU Republic, that is.

Opinion on Covenant Not to Assert Patent Claims

Patent licenses are legal fictions. A patent gives its owner the power to
exclude others from practicing a claim, but it does not confer an affirmative
right to practice it. In essence, then, a patent license is nothing more than
an undertaking not to sue the licensee, and such an undertaking is precisely
what is needed to enable users of GPL’d code to exercise their rights without
fear of liability to upstream distributors for infringement of software patents.
In Draft 2 we replace the formalism of the express patent license given in the
first paragraph of Draft 1, section 11 with a simpler covenant not to assert
patent claims, which more accurately describes the obligations and rights of
distributors and distributees under the GPL.

Our rewriting of the first paragraph of section 11 benefited from the
comments we received from the public and from our discussion committees.
The scope of the express patent license was unclear to many readers; many
gave it a much broader reading than we had intended. The patent license
operated to benefit “any and all versions of the covered work,” which some
read as extending well beyond works based on the covered work to cover all
ancestrally and laterally-related works. The set of claims that were licensed
were those that would be infringed by the distributed covered work “or any
reasonably contemplated use of the covered work.” The reference to “reasonably
contemplated use” was taken from United States case law articulating
the implied patent license doctrine in a conventional seller-buyer context.
Readers questioned whether the phrase had any ascertainable meaning as
used in our provision.

In the covenant provided in the revised section 11, the set of claims that
a party undertakes not to assert against downstream users are that party’s
“essential patent claims” in the work conveyed by the party. “Essential
patent claims,” a new term defined in section 0, are simply all claims “that
would be infringed by making, using, or selling the work.” We have abandoned
the phrase “reasonably contemplated use.” This change makes the
obligations of distributing patent holders more predictable.
Rather than referring ambiguously to “any and all versions of the covered
work,” the covenant not to assert runs in one direction along the branches
of a distribution tree that, unlike the earlier patent license, begins 
with the original author. Each licensee receives the Program with a covenant
from each author and conveyor of the Program and any GPLv3-covered
material on which the Program is based. The covenant is an undertaking
not to bring a suit that alleges infringement based on the licensee’s exercise
of any rights under the GPL. Each licensee conveying a covered work makes
the same covenant to all direct and remote recipients, including recipients
of works based on the covered work, with respect to that licensee’s essential
patent claims in that covered work.

The covenant makes no distinction between those who convey a work
under section 4 (that is, a work in which they hold no copyright interest)
and those who convey a modified work under section 5. Some members of
our discussion committees, commenting on the patent license of our first
draft, urged that such a distinction be made, either by applying the patent
license only to “contributions” or by specifying a more limited form of patent
license for mere distribution. We do not understand the argument that it
is unreasonable for distributors of GPL-covered code to promise not to sue
their own customers, or their customers’ customers, for patent infringement
arising out of that distributed code. Nor do we understand why the presence
or absence of modifications by the distributor ought to make any difference.
That there are other free software licenses that limit the operation of their
patent license provisions to “contributions” is no reason to adopt an approach
that does less to protect users from software patents.

Like the express patent license it replaces, the covenant not to assert
patent claims is rooted in the basic principles of the GPL. Our license has
always stated that distributors may not impose further restrictions on users’
exercise of GPL rights. To make the suggested distinction between contribution
and distribution is to allow a distributor to demand patent royalties
from a direct or indirect recipient, based on claims embodied in the
distributed code. This undeniably burdens users with an additional legal
restriction on their rights, in violation of the license.


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