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Re: The GPL and Patents: ROFL

From: Hyman Rosen
Subject: Re: The GPL and Patents: ROFL
Date: Wed, 08 Dec 2010 16:00:08 -0000
User-agent: Mozilla/5.0 (Windows; U; Windows NT 5.1; en-US; rv: Gecko/20100802 Thunderbird/3.1.2

On 8/19/2010 4:46 PM, RJack wrote:
> I claimed that the GPL could not affect ideas
> covered by patent rights.

The GPL is a copyright license, granting additional rights to
a work beyond those permitted by copyright law. When someone
distributes their work under the GPL, they agree to waive
their right to enforce their patents embodied in that work
against others who use, copy, and distribute that work. I
don't know what you mean by the GPL "affecting ideas".

> Ergo, the GPL as a copyright license cannot extend to an
> idea covered by a patent.

No, that's false. Copyright cannot extend to prevent someone
other than the rights holder to a work from making use of the
ideas expressed in that work. A license issued by the copyright
holder, on the other hand, can grant extra permissions including
to things which are restricted by other things than copyright.

It's really very simple, as long as one is not an anti-GPL crank
who cannot bear the cognitive strain of a universe seemingly bent
on demonstrating his errors at every turn.

A computer program may simultaneously be protected by copyright,
which covers the expression of the program (both at the source
level and potentially also at its higher level structures), by
patents, which cover the ideas and processes performed by the
program, and by trademarks, which cover the use of certain terms
and images specific to that program.

There is no requirement in law that parts of the program covered by
one form of intellectual property protection must not simultaneously
be covered by another. There is a requirement in law that copyright
cannot cover ideas, which may instead be covered by patents.

Both copyrights and patents prevent certain uses of the covered works
by others without permission. The GPL is one way a rights holder may
grant permission, and someone choosing to distribute their work under
the GPL grants restricted permission to use, copy, and distribute that
work to others. This permission includes actions that would otherwise
be liable for copyright infringement and actions which would otherwise
be liable for patent infringement on rights held by the distributor.
By distributing under the GPL, the distributor waives those rights
provided that the recipient honors the GPL if he in turn chooses to
copy and distribute the work.

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