MJ Ray writes: > On 2004-09-21 10:21:58 +0100 Glenn Maynard <[EMAIL PROTECTED]> wrote: > > > On Mon, Sep 20, 2004 at 03:02:49PM +0100, MJ Ray wrote: > >> It is bad patent law which favours patent owners. It is fine to use > >> copyright licences to "correct" copyright law, but using copyright > >> licences to "correct" non-copyright law - be it patent law, gun > >> control law or nuclear technology laws - is not. > > Why? What freedoms does this protect? > > Respectively: the freedom to prosecute with and defend yourself > against patent accusations; the freedom to bear arms; and the freedom > to use nuclear technology. Of course, not all jurisdictions allow > those freedoms, but that's determined by laws, not by copyright > licences.
This argument over-simplifies the case: No putatively free license has included a waiver of patent claims, just termination of patent and/or copyright license if you assert those claims. The interesting case (that some argue is free) is when your license terminates when you claim the software infringes your patent. This is a self-protection measure for the software; while someone might try to construct similar anti-gun or anti-nuclear license terms, they would have to be so narrow as to be both silly and pointless. > > Why should copyright not be used > > to protect free software from patent abuse, just as it's used to > > protect > > against "software hoarding"? > > Mainly because most possible uses have unpleasant side-effects in some > cases. "Software hoarding" is a description of a copyright-based > problem, if you are referring to rms's "Why Software Should Be > Free". It seems just to use copyright to solve it. Why should we use > copyright against patent law, instead of encouraging patent-afflicted > developers to find ways to use patenting against itself? Is there a way to use patenting against itself? For all the times I have seen someone suggest that, I have yet to see a good way to do that. The biggest problem is that you can infringe a patent without knowing it, and trying to not infringe patents is impractical. (Most people cannot afford to hire a patent attorney to review their use of free software against extant patents. Reviewing patents yourself opens the possibility of willful infringement if you are wrong about what is covered. In both cases, valid patents may be pending but not public when you do your review.) Setting aside the question of practicality, I know of three ways to reduce the chance that I will successfully be sued for infringing someone's patent by writing or using free software: (A) establish prior art to refute possible patents; (B) hold for myself broad patents to use defensively; or (C) change the law so fewer issued patents cover software. (A) is impractical because of the number of ideas that are awarded patents, and the relatively small differences that suffice to make them "non-obvoius." The one-year US grace period on prior art also makes this hard. (B) is impractical because of the cost. It is undesirable because it encourages large numbers of broad patents that may not even be practiced by the inventor. (C) may be practical, and people are working to do that. If they succeed, most of the license termination clauses will have little or no legal effect. > Similarly, why should copyright not be used to protect free software > use from gun abuse and nuclear technology abuse? No one has tried. We have so far considered terms of software that people want to include in Debian (including how to fix non-free licenses), so I do not see good reason to debate what would make such clauses free. Michael Poole
