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Re: GPLv3 comedy unfolding -- "Patents"
Re: GPLv3 comedy unfolding -- "Patents"
Wed, 28 Mar 2007 17:52:00 +0200
Software patenting is a harmful and unjust policy, and should be
abolished; recent experience makes this all the more evident. Since
many countries grant patents that can apply to and prohibit software
packages, in various guises and to varying degrees, we seek to protect
the users of GPL-covered programs from those patents, while at the
same time making it feasible for patent holders to contribute to and
distribute GPL-covered programs as long as they do not attack the
users of those programs. Therefore, we have designed GPLv3 to reduce
the patent risks that distort and threaten the activities of users who
make, run, modify and share free software. At the same time, we have
given due consideration to practical goals such as certainty and
administrability for patent holders that participate in distribution
and development of GPL-covered software. Our policy requires each such
patent holder to provide appropriate levels of patent assurance to
users, according to the nature of the patent holders relationship to
Draft 3 features several significant changes concerning patents. We
have made improvements to earlier wording, clarified when patent
assertion becomes a prohibited restriction on GPL rights, and replaced
a distribution-triggered non-assertion covenant with a contribution-
based patent license grant. We have also added provisions to block
collusion by patent holders with software distributors that would
extend patent licenses in a discriminatory way.
Draft 3 introduces the terms contributor and contribution, which
are used in the third paragraph of section 10 and the first paragraph
of section 11, discussed successively in the following two subsections.
Section 0 defines a contributor as a party who licenses under this
License a work on which the Program is based. That work is the
contribution of that contributor. In other words, each received
GPLv3-covered work is associated with one or more contributors, making
up the finite set of upstream GPLv3 licensors for that work. Viewed
from the perspective of a recipient of the Program, contributors include
all the copyright holders for the Program, other than copyright holders
of material originally licensed under non-GPL terms and later
incorporated into a GPL-covered work. The contributors are therefore the
initial GPLv3 licensors of the Program and all subsequent upstream
licensors who convey, under the terms of section 5, modified works on
which the Program is based.
For a contributor whose contribution is a modified work conveyed under
section 5, the contribution is the entire work, as a whole which the
contributor is required to license under GPLv3. The contribution
therefore includes not just the material added or altered by the
contributor, but also the pre-existing material the contributor copied
from the upstream version and retained in the modified version. Our
usage of contributor and contribution should not be confused with
the various other ways in which those terms are used in certain other
free software licenses.
[snip Eben's impenetrable pseudo-techno-poetry regarding litigation]
Our previous drafts featured a patent license grant triggered by all
acts of distribution of GPLv3-covered works.11 Many patent-holding
companies objected to this policy. They have made two objections: (1) the
far-reaching impact of the patent license grant on the patent holder is
disproportionate to the act of merely distributing code without
modification or transformation, and (2) it is unreasonable to expect an
owner of vast patent assets to exercise requisite diligence in reviewing
all the GPL-covered software that it provides to others. Some expressed
particular concern about the consequences of inadvertent distribution.
The argument that the impact of the patent license grant would be
disproportionate, that is to say unfair, is not valid. Since software
patents are weapons that no one should have, and using them for aggression
against free software developers is an egregious act, preventing that act
cannot be unfair.
However, the second argument seems valid in a practical sense. A typical
GNU/Linux distribution includes thousands of programs. It would be quite
difficult for a redistributor with a large patent portfolio to review all
those programs against that portfolio every time it receives and passes
on a new version of the distribution. Moreover, this question raises a
strategic issue. If the GPLv3 patent license requirements convince patent-
holding companies to remain outside the distribution path of all GPL-
covered software, then these requirements, no matter how strong, will
cover few patents.
We concluded it would be more effective to make a partial concession
which would lead these companies to feel secure in doing the distribution
themselves, so that the conditions of section 10 would apply to assertion
of their patents. We therefore made the stricter section 11 patent license
apply only to those distributors that have modified the program. The other
changes we have made in sections 10 and 11 provide strengthened defenses
against patent assertion and compensate partly for this concession.
We have rejected a suggestion by companies that the patent license grant
should only cover patent claims that read on the changes and additions
that the contributor has made to a work, perhaps also extending, in some
ill-defined way, to patent claims that are infringed specifically as a
result of the combination of those modifications with the rest of the work.
Such a narrow rule is unacceptable because it would do too little. Given
the manner in which software patent claims are drafted, we fear that few
patent claims would fit that criterion and be licensed. Even substantial
modifications to a work are typically fragmentary from a patent
infringement perspective. They are not in themselves likely to read on a
patent claim drawn to cover a broader or complete system or method.
Moreover, in cases where a patent claim held by a distributor relates
closely to the modification it has made to a work, it will often be the
case that the modification itself does not cause the entire modified
work to read on the claim, such as when the claim is broad enough to cover
the original work in the form in which it was received by the distributor.
Therefore, in Draft 3, the first paragraph of section 11 states that a
contributors patent license covers all the essential patent claims
implemented by the whole program as that contributor distributes it.
Contributors of modified works grant a patent license to claims that
read on the entire work, as a whole. This is the work that the copyleft
clause in section 5 requires the contributor to license under GPLv3; it
includes the material the contributor has copied from the upstream version
that the contributor has modified. The first paragraph of section 11 does
not apply to those that redistribute the program without change.
We hope that this decision will result in fairly frequent licensing of
patent claims by contributors. A contributor is charged with awareness of
the fact that it has modified a work and provided it to others; no act of
contribution should be treated as inadvertent. Our rule also requires no
more work, for a contributor, than the weaker rule proposed by the patent
holders. Under their rule, the contributor must always compare the entire
work against its patent portfolio to determine whether the combination of
the modifications with the remainder of the work cause it to read on any
of the contributors patent claims.
[... more Eben's impenetrable pseudo-techno-poetry regarding patents ...]
"FORM 990, PART II, LINE 25 - OFFICER COMPENSATION SCHEDULE
OFFICER NAME AND TYPE OF COMPENSATION SERVICES AND GENERAL
COMPENSATION: 116,875. 38,959."
-- SOFTWARE FREEDOM LAW CENTER, INC.
- Re: GPLv3 comedy unfolding -- "GPL advocates urged <strikethrough>told</strikethrough> to pay for love", (continued)
- Re: GPLv3 comedy unfolding -- "GPL advocates urged <strikethrough>told</strikethrough> to pay for love", Alexander Terekhov, 2007/03/23
- Re: GPLv3 comedy unfolding -- "Next GPL3 Draft to be Released on Wednesday", Alexander Terekhov, 2007/03/26
- Re: GPLv3 comedy unfolding -- "FSF to tweak GPLv3 to bust up MS Novell deal", Alexander Terekhov, 2007/03/27
- Re: GPLv3 comedy unfolding -- "LWN: A new GPLv3 timetable", Alexander Terekhov, 2007/03/27
- Re: GPLv3 comedy unfolding -- "User Products", Alexander Terekhov, 2007/03/28
- Re: GPLv3 comedy unfolding -- "Installation Information", Alexander Terekhov, 2007/03/28
- Re: GPLv3 comedy unfolding -- "Ephemeral Propagation", Alexander Terekhov, 2007/03/28
- Re: GPLv3 comedy unfolding -- "Inherently Unmodifiable Copies", Alexander Terekhov, 2007/03/28
- Re: GPLv3 comedy unfolding -- "Network Access and Other Limitations", Alexander Terekhov, 2007/03/28
- Re: GPLv3 comedy unfolding -- "Paracopyright", Alexander Terekhov, 2007/03/28
- Re: GPLv3 comedy unfolding -- "Patents",
Alexander Terekhov <=
- Re: GPLv3 comedy unfolding -- "fate worse than death: ... Novell and Microsoft", Alexander Terekhov, 2007/03/28
- Re: GPLv3 comedy unfolding -- "Novell position on GPL3 draft", Alexander Terekhov, 2007/03/28
- Re: GPLv3 comedy unfolding -- "IBM's Mills Sounds Off On GPL, Free Software Foundation", Alexander Terekhov, 2007/03/29