On Novell and Microsoft

Posted Nov 8, 2006 0:16 UTC (Wed) by iabervon (subscriber, #722) [Link]

Read the actual GPL document. The relevant section is 2b, which states:

You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.

(Sections 1 and 3 are about making the actual content available; 2a and 2c are about making the modifications clear; 4, 5, and 6 state that you can't change the license; 7 is informational; beyond that is administrivia).

Having a work licensed to you under the terms of the GPL doesn't mean that using it would not infringe patents held by other people. Nor does owning a copy of the work. Some actions require multiple rights, granted by distinct entities. The GPL only has an effect on copyright on works. Now, a patent license which prevented you from licensing works which use that patent to everybody under the GPL would prevent you from legally distributing a GPL work; you have to be able to do that much, as section 7 says. But the GPL can't really say anything about whether people are allowed to transmit on licensed RF bands with a GPL software radio program, or allowed to import works to countries with import restrictions, or use it without additional patent licenses.

Otherwise, Microsoft could shut down the FSF by granting use of some patent to any organization with a three-letter acronym. Then the FSF would have a patent it couldn't sublicense to John Doe, and would therefore be unable to distribute anything under the GPL. This doesn't work because the grant wouldn't give them any obligation not to license works under the GPL to people who aren't covered by the patent grant. Conventionally, patent licenses do restrict what the owners of works can do as far as licensing those works, but that's not necessarily the case.

(And, to make things more complicated, a patent may cover only some uses of something, because the application of a known technique to an unexpected problem is a valid invention; someone offering a work under the GPL may not be using all of the patents that potential users of the work would use, so there would be no need for the owner to get a license for that patent at all, let alone a sublicensable one.)

Posted Nov 8, 2006 16:32 UTC (Wed) by zlynx (subscriber, #2285) [Link]

Also, and this is an interesting bit of IP law, source code cannot be patented.

It's only the binary + the computer that is patented. Really.

Think about how ludicrous it would be to claim that a book is patented. Or a magazine article. Source code is the same thing, just words people read. Only when a computer performs it does it become something covered under patent law.

Because source code itself is just a (precisely detailed) description of how it works. This is exactly what a patent application is supposed to contain, since patents were originally intended to provide incentives to disclose secret techniques.