On Thursday, 20 March 2003, John Cowan wrote: Eben Moglen scripsit: > The license is more > robust than that, and indeed--for reasons I've described elsewhere-- > section 7 can actually provide important mutual defense against > assertions of supposed patent rights, but it can only do so if code is > licensed under it. Can you give us a pointer to these reasons?
A couple of people having asked off list as well, let me put the whole matter in a nutshell: Under US patent law, injunctions against distribution of infringing goods are scarce as hens' teeth. The adequate remedy is assumed to be royalties by way of damages. In the free software context, that means independent developers and non-commercial distributors, both of whom don't as a rule charge for their code, are pointless defendants to sue. The people who get hassled are the large commercial distributors who make money and who therefore are potential sources of royalties. Those enterprises, however, usually have substantial patent inventories of their own. Therefore, they don't pay royalties either; they cross-license. So let's suppose that (naming someone at random) Microsoft has a patent that reads on some standard and wants to assert its patent against, say, the Linux kernel's implementation of the standard. Suing individuals who don't charge won't work, so they go to (again, picking a name at random) HP. Under ordinary circumstances, HP would cross-license on non-sublicensable RAND terms, using its own patent portfolio to make a separate peace and leaving the rest of us to hold the bag. *BUT* not with section 7 of GPL. If HP accepts that RAND license, it has conditions imposed on it incompatible with GPL, and therefore must stop distributing the Linux kernel. The only terms it can accept are GPL-compatible terms, and if those terms are available to it, they are de facto available to all. If it can't get a GPL-compatible license, HP has no choice but to defend the infringement action, which it (unlike most of the rest of us) has resources to do. In this way, by preventing separate-peace deals among fat cats, GPL section 7 actually ensures vigorous defense of patent assertions against free software. Unlike patent retaliation and "mutual defense" provisions, which have some side effects of their own and which only work against patent plaintiffs who also distribute free software, GPL section 7 does more than discourage the assertion of claims; it actually mobilizes the relevant resources by creating incentives for well-funded potential *defendants* to do the right thing. This approach to patent defense is--if you'll pardon a slight professional joke--novel and non-obvious. It's one of the subtleties of GPL. I'm not sure it's all we need; Richard Stallman and I are still considering the full range of options for GPL v3. But I think it deserves careful consideration by those who are trying to decide what license to use with one eye on the egregious problem of software patents. Best to all, Eben -- Eben Moglen voice: 212-854-8382 Professor of Law fax: 212-854-7946 moglen@ Columbia Law School, 435 West 116th Street, NYC 10027 columbia.edu General Counsel, Free Software Foundation http://moglen.law.columbia.edu -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
