4 ms·

I'm curious how you believe the GPL has overstepped regarding patents in the context of a copyleft license. GPLv2 says very little directly about patents, only

by wolrah 10y ago

I'm curious how you believe the GPL has overstepped regarding patents in the context of a copyleft license. GPLv2 says very little directly about patents, only touching on the topic by saying that they're not an excuse for not complying. That implies some things for patent holders on relevant topics but isn't explicit about it. GPLv3 basically makes those implications explicit, stating clearly that if you hold or license any relevant patents you must be able to freely license them downstream. To me that stuff is implied with copyleft, because how else could it work? Since patents restrict my ability to legally redistribute the code, and the whole point of copyleft is to ensure my ability to legally redistribute the code, I don't see how they're separable as long as software patents remain being a thing.

jdmichal 10y ago
Does it restrict your capability to distribute the code? Or the user's capability to run the code unless they have properly licensed the patent contained therein? I'm specifically thinking about sub-pixel font rendering, for which FreeType contains code which is disabled by default due to patents: https://en.wikipedia.org/wiki/Subpixel_rendering#Patents https://en.wikipedia.org/wiki/Subpixel_rendering#Patents That would imply that it's the latter. Which, of course, is still an issue for the user. But it does point to the GPL not requiring the patent clause in order to meet its copyleft goals.
- Nomentatus 10y ago
  Interesting angle. I'd say the courts haven't ruled on this. FreeType wasn't created by Microsoft, obviously. It has no license for M's patented tech so it can't include the code live, period. I presume that FreeType is trying to skirt the law by making it easy for users to break the law without, they hope, being seen as breaking the law themselves. I don't know what the court would decide if Microsoft sued. Presumably FreeType would say that the code was there just to help future programmers catch up when the patent expires. I'm guessing they wouldn't win that one. So, I'm going to say it's not a sufficient example.
Nomentatus 10y ago
"Downstream" means everybody, of course, forever. You've just lost your patented tech, so if you don't want to sell it outright, you can't touch anything GPL. Given how complex technologies are, now, that severely limits where GPL2 and 3 can be used. So you might ask, why does Google use the Linux kernel? Perhaps because they don't have to modify the kernel to accommodate inventions they wish to preserve, for public software such as Android; but more importantly the kernel is useless by itself and the license doesn't extend to libraries (Google spent billions recreating the GNU libraries to be sure of that), so the license for the kernel has no practical importance. The rights granted are "stranded", as it were. Clever on the part of Google. But in most cases, the GPL or MPL can't be gotten around in that manner. The googleable rubric for GPL2 is "GPL's Implied Patent Grant." In sum, the GPL seizes all relevant patent rights from any contributor (regardless of whether those contributions related to their patents, IIRC) and any distributor. In some cases that doesn't matter - in other cases, it does. If you want to retain control of who gets to use your patents, and patented tech, that's a big problem. If your invention is a hardware invention, the GPL still scoops it up - their language doesn't exclude rights to hardware inventions - so you may actually have the right to build any such patented hardware as long as you put Linux in it: if the patent owner touched Linux. It would take a court case to be certain this wasn't a risk. This also seems to mean (even for GPL2) that if you explicitly license one entity to use GPLed software with your patented tech (hardware or software), then you've just given a free license to every soul on earth to do the same, with no royalties. In some cases, that might not matter. In many other cases, it does. "In contrast, a GPLv2 licensee, under the doctrine of implied patent license, is free to practice any patent claims held by the licensor that cover “reasonably contemplated uses” of the GPL’d code, which may very well include creation and distribution of modified works since the GPL’s terms, under which the patented code is distributed, expressly permits such activity. Further supporting this result is the Federal Circuit’s pronouncement that the recipient of a patented article has, not only an implied license to make, use, and sell the article, but also an implied patent license to repair the article to enable it to function properly, Bottom Line Mgmt., Inc. v. Pan Man, Inc., 228 F.3d 1352 (Fed. Cir. 2000). Additionally, the Federal Circuit extended that rule to include any future recipients of the patented article, not just the direct recipient from the distributor. This theory comports well with the idea of Free Software, whereby software is distributed among many entities within the community for the purpose of constant evolution and improvement. In this way, the law of implied patent license used by the GPLv2 ensures that the community mutually benefits from the licensing of patents to any single community member." https://copyleft.org/guide/comprehensive-gpl-guidech7.html https://copyleft.org/guide/comprehensive-gpl-guidech7.html
Nomentatus 10y ago
"To me that stuff is implied with copyleft, because how else could it work?" The "copy" in Copyleft gives you your answer - it ought to be about sharing copyrights to code, not patents. You don't have to grab patents (which expire in twenty years.) Copypatentleft is what we really have, instead, with GPL, and that's a whole different beast. So, it is of course logically possible to confer the copyright to code that exploits a patented idea without conferring the patent rights at the same time. That would mean that not everyone could use some shared code, without a license, even though they have a copyright license and can share and examine it. The patent holder would retain their patent rights. Why respect patent rights? Because the majority of value in American businesses is IP - trade secrets and patents being the bulk of that. GPL is therefore a non-starter in the corporate world, more often that not. You don't have to share patents. If you insist, then your code gets duplicated under another "more permissive" open software license at enormous expense, that's all. If you want my work on your community code, great! If you want my ideas - my patented ideas, um, no.

by wolrah 10y ago

jdmichal 10y ago

Does it restrict your capability to distribute the code? Or the user's capability to run the code unless they have properly licensed the patent contained therein? I'm specifically thinking about sub-pixel font rendering, for which FreeType contains code which is disabled by default due to patents: https://en.wikipedia.org/wiki/Subpixel_rendering#Patents https://en.wikipedia.org/wiki/Subpixel_rendering#Patents That would imply that it's the latter. Which, of course, is still an issue for the user. But it does point to the GPL not requiring the patent clause in order to meet its copyleft goals.

Nomentatus 10y ago
Interesting angle. I'd say the courts haven't ruled on this. FreeType wasn't created by Microsoft, obviously. It has no license for M's patented tech so it can't include the code live, period. I presume that FreeType is trying to skirt the law by making it easy for users to break the law without, they hope, being seen as breaking the law themselves. I don't know what the court would decide if Microsoft sued. Presumably FreeType would say that the code was there just to help future programmers catch up when the patent expires. I'm guessing they wouldn't win that one. So, I'm going to say it's not a sufficient example.

Nomentatus 10y ago

"Downstream" means everybody, of course, forever. You've just lost your patented tech, so if you don't want to sell it outright, you can't touch anything GPL. Given how complex technologies are, now, that severely limits where GPL2 and 3 can be used. So you might ask, why does Google use the Linux kernel? Perhaps because they don't have to modify the kernel to accommodate inventions they wish to preserve, for public software such as Android; but more importantly the kernel is useless by itself and the license doesn't extend to libraries (Google spent billions recreating the GNU libraries to be sure of that), so the license for the kernel has no practical importance. The rights granted are "stranded", as it were. Clever on the part of Google. But in most cases, the GPL or MPL can't be gotten around in that manner. The googleable rubric for GPL2 is "GPL's Implied Patent Grant." In sum, the GPL seizes all relevant patent rights from any contributor (regardless of whether those contributions related to their patents, IIRC) and any distributor. In some cases that doesn't matter - in other cases, it does. If you want to retain control of who gets to use your patents, and patented tech, that's a big problem. If your invention is a hardware invention, the GPL still scoops it up - their language doesn't exclude rights to hardware inventions - so you may actually have the right to build any such patented hardware as long as you put Linux in it: if the patent owner touched Linux. It would take a court case to be certain this wasn't a risk. This also seems to mean (even for GPL2) that if you explicitly license one entity to use GPLed software with your patented tech (hardware or software), then you've just given a free license to every soul on earth to do the same, with no royalties. In some cases, that might not matter. In many other cases, it does. "In contrast, a GPLv2 licensee, under the doctrine of implied patent license, is free to practice any patent claims held by the licensor that cover “reasonably contemplated uses” of the GPL’d code, which may very well include creation and distribution of modified works since the GPL’s terms, under which the patented code is distributed, expressly permits such activity. Further supporting this result is the Federal Circuit’s pronouncement that the recipient of a patented article has, not only an implied license to make, use, and sell the article, but also an implied patent license to repair the article to enable it to function properly, Bottom Line Mgmt., Inc. v. Pan Man, Inc., 228 F.3d 1352 (Fed. Cir. 2000). Additionally, the Federal Circuit extended that rule to include any future recipients of the patented article, not just the direct recipient from the distributor. This theory comports well with the idea of Free Software, whereby software is distributed among many entities within the community for the purpose of constant evolution and improvement. In this way, the law of implied patent license used by the GPLv2 ensures that the community mutually benefits from the licensing of patents to any single community member." https://copyleft.org/guide/comprehensive-gpl-guidech7.html https://copyleft.org/guide/comprehensive-gpl-guidech7.html

Nomentatus 10y ago

"To me that stuff is implied with copyleft, because how else could it work?" The "copy" in Copyleft gives you your answer - it ought to be about sharing copyrights to code, not patents. You don't have to grab patents (which expire in twenty years.) Copypatentleft is what we really have, instead, with GPL, and that's a whole different beast. So, it is of course logically possible to confer the copyright to code that exploits a patented idea without conferring the patent rights at the same time. That would mean that not everyone could use some shared code, without a license, even though they have a copyright license and can share and examine it. The patent holder would retain their patent rights. Why respect patent rights? Because the majority of value in American businesses is IP - trade secrets and patents being the bulk of that. GPL is therefore a non-starter in the corporate world, more often that not. You don't have to share patents. If you insist, then your code gets duplicated under another "more permissive" open software license at enormous expense, that's all. If you want my work on your community code, great! If you want my ideas - my patented ideas, um, no.