Re: IBM's open patent licensing policy
Lawrence E. Rosen wrote: [...] There is also a current conflict in open source licensing circles about how IBM and other companies use their patents for defensive purposes, with important implications for open source software. [See thread termination with unrelated trigger considered harmful on both [EMAIL PROTECTED] and [EMAIL PROTECTED] Do you have a link? regards, alexander. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
bare license
I think I understand why the Free Software Foundation insists that a license is not a contract. Their belief is grounded upon a mistaken interpretation of the case law on licensing patents, highlighted in a 1938 decision by the Supreme Court in General Talking Pictures Corp. v. Western Electric Co., Inc., 305 U.S. 124 The question of law requiring decision is whether the restriction in the license is to be given effect. That a restrictive license is legal seems clear. Mitchell v. Hawley, 16 Wall. 544. As was said in United States v. General Electric Co., 272 U.S. 476, 489 , 47 S.Ct. 192, 196, the patentee may grant a license 'upon any condition the performance of which is reasonably within the reward which the patentee by the grant of the patent is entitled to secure.' The restriction here imposed is of that character. The practice of granting licenses for a restricted use is an old one, see Providence Rubber Company v. Goodyear, 9 Wall. 788, 799, 800; Gamewall Fire-Alarm Telegraph Co. v. Brooklyn, C.C., 14 F. 255. So far as appears, its legality has never been questioned. The parties stipulated that 'it is common practice where a patented invention is applicable to different uses, to grant written licenses to manufacture under United States Letters Patents restricted to one or more of the several fields of use permitting the exclusive or non-exclusive use of the invention by the licensee in one field and excluding in another field. The phrase above, the patentee may grant a license 'upon any condition the performance of which is reasonably within the reward which the patentee by the grant of the patent is entitled to secure.' refers to the fact that any condition imposed in a bare license (no contractual terms) may restrict only the use of the exclusive rights (reward) of the patentee. The patentee alone is the only person who can restrict his exclusive rights. The phrase quoted above does not apply analogously to all exclusive rights in derivative copyrighted works. In patent law there is no such thing as a derivative patent defined as two distinct legal parties owning independent exclusive rights in the same idea. Sec. 103 (b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work... The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. An original author has an exclusive right to commission a derivative work, but his exclusive rights encompass only his preexisting work in the commissioned work. The original author must bargain for the modifying author's exclusive rights. They exist independently of the original author's exclusive rights and hence do not fall under the scope of a bare license. They are not within the reward which the copyright holder by the grant of the copyright is entitled to secure of the original author. A summary of the above reasoning is a unilateral grant of permission for a derivate copyright work does not exist within the scope of the definition of a 'bare' license. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: bare license
I do not think the reason why FSF favors the argument you mentioned -- that an open source license is a license, not a contract -- is a secret. A copyright license typically sets forth the rights granted by the licensor. The issue that occasionally arises is whether a copyright license like the GNU GPL must meet the rules and formalities typically associated with contracts (e.g., mutual assent). Rod Rod Dixon Open Source Software Law Blog: http://opensource.cyberspaces.org - Original Message - From: dlw [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent: Thursday, January 15, 2004 9:02 AM Subject: bare license : I think I understand why the Free Software Foundation insists that : a license is not a contract. Their belief is grounded upon : a mistaken interpretation of the case law on licensing patents, : highlighted in a 1938 decision by the Supreme Court in : General Talking Pictures Corp. v. Western Electric Co., : Inc., 305 U.S. 124 : : : The question of law requiring decision is whether the restriction : in the license is to be given effect. That a restrictive license : is legal seems clear. Mitchell v. Hawley, 16 Wall. 544. As was said : in United States v. General Electric Co., 272 U.S. 476, 489 , 47 : S.Ct. 192, 196, the patentee may grant a license 'upon any : condition the performance of which is reasonably within the reward : which the patentee by the grant of the patent is entitled to secure.' : The restriction here imposed is of that character. The practice of : granting licenses for a restricted use is an old one, see Providence : Rubber Company v. Goodyear, 9 Wall. 788, 799, 800; Gamewall Fire-Alarm : Telegraph Co. v. Brooklyn, C.C., 14 F. 255. So far as appears, its : legality has never been questioned. The parties stipulated that 'it : is common practice where a patented invention is applicable to : different uses, to grant written licenses to manufacture under : United States Letters Patents restricted to one or more of the : several fields of use permitting the exclusive or non-exclusive use : of the invention by the licensee in one field and excluding in : another field. : : : The phrase above, the patentee may grant a license 'upon any : condition the performance of which is reasonably within the reward : which the patentee by the grant of the patent is entitled to : secure.' refers to the fact that any condition imposed in a bare : license (no contractual terms) may restrict only the use of the : exclusive rights (reward) of the patentee. The patentee : alone is the only person who can restrict his exclusive rights. : : The phrase quoted above does not apply analogously to all : exclusive rights in derivative copyrighted works. In patent law : there is no such thing as a derivative patent defined as two : distinct legal parties owning independent exclusive rights in : the same idea. : : Sec. 103 (b) The copyright in a compilation or derivative work extends : only to the material contributed by the author of such work... : The copyright in such work is independent of, and does not affect or : enlarge the scope, duration, ownership, or subsistence of, any : copyright protection in the preexisting material. : : An original author has an exclusive right to commission a derivative : work, but his exclusive rights encompass only his preexisting work : in the commissioned work. The original author must bargain for the : modifying author's exclusive rights. They exist independently of the : original author's exclusive rights and hence do not fall under the : scope of a bare license. They are not within the reward which the : copyright holder by the grant of the copyright is entitled to secure : of the original author. : : A summary of the above reasoning is a unilateral grant of permission : for a derivate copyright work does not exist within the scope of the : definition of a 'bare' license. : : -- : license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3 -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: Open Source Definition : can it be made explicit about non-copyright issues?
On Wed, 14 Jan 2004, Alexander Terekhov wrote: Russell McOrmond wrote: [...] Note: There are all these Halloween documents discussing the OSI battle-of-words with Microsoft, but I wonder why there is no similar discussion with IBM? Well, see http://www.opensource.org/licenses/cpl.php http://www.opensource.org/licenses/ibmpl.php This doesn't constitute a discussion on the same scale. Both Microsoft and IBM have licensed relatively small parts of their software portfolio (patents and copyright) via Free/Libre and Open Source licensing. This minor amount of Open Source licensing of software does not deal with the problems these companies create for the Open Source movement. I will allow someone with a legal background to look at these licenses and question whether they constitute Open Source patent licenses considering they have field of use restrictions (Conflicts with OSD #3, #7, #8). I was not part of this mailing list when these licenses were evaluated. As I suggested in the earlier message I suspect that evaluations thus far have looked far more closely at copyright clauses than they have at patent clauses. http://europa.eu.int/comm/internal_market/en/indprop/comp/ibm.pdf IBM believes harmonisation should occur along lines which endorse the current practice and case law of the European Patent Office. We oppose either a more restrictive or a more liberal approach to patenting. I am glad you provided examples of the problem I was trying to alert people in this forum to. The current practice of the EPO has been to grant software patents on pure software (not software coincidentally part of an otherwise patentable manufacturing process - a different situation entirely) even though article 52 of the European Patent Convention specifically excluded programs for computers, mental rules, mathematical methods etc from patentability. In other words, this position from IBM was a clear statement in favor of legalizing software patents in Europe contrary to the existing EPC, part of the general extreme pro-software-patent lobbying position of IBM worldwide. You seem to be agreeing that the IBM position in policy discussions such as this has been in favor of software patents (treating software as itself a manufactured good to be treated similar to computer hardware). This position is in and of itself a position in opposition to Open Source. The Halloween documents describe the opposition that Microsoft has had against Open Source. I still do not see the information on the OpenSource.org website describing the opposition that IBM has had against Open Source. Without documenting and better understanding this opposition it will be unlikely that there will be a motivation for IBM to change. The branches of software creators which treat software as a manufactured good (Software Manufacturing) and Open Source can co-exist. This has has been the position of the OSI, but this co-existence is only possible if lobby groups like IBM stop pushing for policies which favor only software manufacturing at the exclusion of Open Source. When we discuss exclusive rights in the form of copyright (excluding interface copyright of course) we are talking about a form of software protection where many methodologies can and do co-exist. When we talk about software patents (or interface copyright) we talk about a form of protection that protects software manufacturing at the exclusion of Open Source and Free Software. To see my policy suggestions from last year, see: http://www.flora.ca/patent2003/ I wonder if IBM would support the suggestion that fair use (fair dealings in Canada) should be a defense against patent infringement claims and that use of royalty-free licensing offering users the right to run, copy, distribute, study, change and improve the software (in other words, was Free/Libre and Open Source Software) would trigger this fair use exemption. While this is not an ideal solution like statutory exclusions of information process patents, it would deal with some of the worst cases we are currently dealing with. P.S. europa.eu.int/comm/internal_market/en/indprop/comp/eicta.pdf One company and organization at a time. I would first like to see members of OSI open more substantive conversations with IBM, and then worry about these other organizations opposed to Open Source at a later date. The BSA and CompTIA have also published considerable literature opposed to Open Source, but are not as visible as IBM in trying extract benefit from the movement at the same time. --- Russell McOrmond, Internet Consultant: http://www.flora.ca/ Governance software that controls ICT, automates government policy, or electronically counts votes, shouldn't be bought any more than politicians should be bought. -- http://www.flora.ca/russell/ -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
