Hi Eben, Good questions.
1. I think we *are* beginning to observe instances of the problem we are trying to solve. The EOLAS patents, for example, were such a threat that W3C formed a PAG that recommended reexamination (which the PTO just agreed to do). I've read emails from Bruce Perens identifying patents that have affected IETF standards. Perhaps others in cc have specific examples. On the other hand, what evidence can you adduce to suggest that there is some form of "natural immunity" for open source software? 2. The escape hatch you describe can be prevented by appropriate license language. For example, many open source licenses define the licensee as "any entity that controls, is controlled by, or is under common control with" licensee. I've wondered if the EOLAS patent would be less a threat to open source browsers if the University of California, a passive plaintiff in that infringement lawsuit, were threatened with loss of its rights to open source software. If current language provisions like these aren't sufficient, can you suggest more effective language? /Larry > -----Original Message----- > From: Eben Moglen [mailto:[EMAIL PROTECTED] > Sent: Saturday, November 22, 2003 7:51 AM > To: Brian Behlendorf > Cc: [EMAIL PROTECTED]; [EMAIL PROTECTED]; 'Peterson, Scott > K (HP Legal)'; [EMAIL PROTECTED] > Subject: RE: termination with unrelated trigger considered harmful > > > So long as everyone feels like having this very useful > conversation, I'd like to ask a couple of questions that I've > been mulling over. These are non-argumentative questions; I > don't know what the "right" patent defense policy for free > software licenses is, and I'm still trying to understand both > the problem itself and the dynamic effects of the various > proposed measures of solution. > > 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? > > 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? > > Best regards to all. > > -- > 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 >
