On Saturday, November 22, 2003, at 07:50 AM, Eben Moglen wrote:
1. Why is it that we don't presently observe instances of the
problem we are trying to solve? Patent infringement
lawsuits have not been brought against free software
programs, though there are lots of software patents and a
certain serious number of infringement actions. Is the
non-occurrence simply an artifact of probability, or are
there existing social and legal mechanisms that already
establish a gradient against such actions, a form of
"natural immunity" which our licensing or other
defense arrangements might act to strengthen?
I'll echo Arnaud by saying it is a combination of lacking a purse
that can be pilfered and the bad PR that would result. However, I have
been informed that there have been situations in which large companies
using our software have been approached by patent-owning companies,
either for the sake of demanding fees for use of our software or as a
counter-claim for the purpose of cross-licensing. It is therefore a
major concern for the companies who participate in our projects.
2. If I am a patent-holder wishing to sue some part of the
free software ecology for patent infringement, either in
order to obtain license revenue or in order to disrupt the
free software system, couldn't I build a separated special
purpose entity that would hold the relevant patent(s) and
conduct the litigation, thus insulating my main businesses
from the retaliatory effect of license cancellations?
Typically that is handled by defining "You" or "Recipient" to the
same extent that I defined "Contributor" in the proposed license.
....Roy
