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A contract obviously can't contradict the law, but can grant rights that don't contradict the law. If the contract grants rights to copy, modify and distribute,

A contract obviously can't contradict the law, but can grant rights that don't contradict the law. If the contract grants rights to copy, modify and distribute, then they are granted (usually irrevocably), the grant of rights doesn't contradict law.

rayiner 8y ago
Of course, as a matter of contract law, you can grant a license to use your patents to anyone who uses your open source product under the terms of your chosen license. The question here is whether, by making your software available as open source, your patent rights are exhausted in any copies of that software, even in the absence of such a patent license. What Impression Products says is that the contractual arrangement between buyer and seller doesn't matter. Exhaustion is something that arises by virtue of patent law when a specific item is sold into the stream of commerce. In theory, that should work both ways. You can't use the software license to narrow the scope of patent exhaustion, and by the same token, just because the license gives you a broad right to copy the software, that shouldn't have any bearing on the scope of exhaustion. (* This is all assuming that exhaustion even applies to software. Impression Products has an interesting line, where it distinguishes patent licenses, where you can impose restrictions on the scope of the license, from sales of patented products, where you cannot: "Because the patentee is exchanging rights, not goods, it is free to relinquish only a portion of its bundle of patent protections." Patent exhaustion is really bound up in this ancient idea of the law disfavoring "restraints on alienation." That is to say, you can't sell someone a piece of land, but only on the condition that the land can't be resold. Software, however, is generally licensed and not sold, and that includes software under open source licenses. The GPL v.2, for example, states: > However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it. If receiving a copy of GPL'ed software as considered a "sale" the above wouldn't be true. Under the first sale doctrine, you are entirely free to modify a purchased copy of a copyrighted work free of any further restrictions from the copyright owner. E.g. cases have upheld the right of buyers of art to create a derivative work by cutting it up and mounting the pieces on tiles. And, in theory, you should be able to resell your modified copy of the work too. Impression Products strongly suggests that, where you're talking about receiving licenses to use, copy, and create derivative works of software, rather than sale of a physical good including software, there is no patent exhaustion.)
- GoblinSlayer 8y ago
  Exhaustion has too narrow scope anyway, you can safely assume that patent rights are not exhausted for the purpose of open source. But in addition to rights you have obligations per the contract, and if the contract grants rights to the consumer, those rights are guaranteed.

rayiner 8y ago

Of course, as a matter of contract law, you can grant a license to use your patents to anyone who uses your open source product under the terms of your chosen license. The question here is whether, by making your software available as open source, your patent rights are exhausted in any copies of that software, even in the absence of such a patent license. What Impression Products says is that the contractual arrangement between buyer and seller doesn't matter. Exhaustion is something that arises by virtue of patent law when a specific item is sold into the stream of commerce. In theory, that should work both ways. You can't use the software license to narrow the scope of patent exhaustion, and by the same token, just because the license gives you a broad right to copy the software, that shouldn't have any bearing on the scope of exhaustion. (* This is all assuming that exhaustion even applies to software. Impression Products has an interesting line, where it distinguishes patent licenses, where you can impose restrictions on the scope of the license, from sales of patented products, where you cannot: "Because the patentee is exchanging rights, not goods, it is free to relinquish only a portion of its bundle of patent protections." Patent exhaustion is really bound up in this ancient idea of the law disfavoring "restraints on alienation." That is to say, you can't sell someone a piece of land, but only on the condition that the land can't be resold. Software, however, is generally licensed and not sold, and that includes software under open source licenses. The GPL v.2, for example, states: > However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it. If receiving a copy of GPL'ed software as considered a "sale" the above wouldn't be true. Under the first sale doctrine, you are entirely free to modify a purchased copy of a copyrighted work free of any further restrictions from the copyright owner. E.g. cases have upheld the right of buyers of art to create a derivative work by cutting it up and mounting the pieces on tiles. And, in theory, you should be able to resell your modified copy of the work too. Impression Products strongly suggests that, where you're talking about receiving licenses to use, copy, and create derivative works of software, rather than sale of a physical good including software, there is no patent exhaustion.)

GoblinSlayer 8y ago
Exhaustion has too narrow scope anyway, you can safely assume that patent rights are not exhausted for the purpose of open source. But in addition to rights you have obligations per the contract, and if the contract grants rights to the consumer, those rights are guaranteed.