A limited patent grant from Nokia [LWN.net]

A limited patent grant from Nokia

Posted May 25, 2005 21:44 UTC (Wed) by JoeBuck (subscriber, #2330)
In reply to: A limited patent grant from Nokia by mjr
Parent article: A limited patent grant from Nokia

Actually, it does mean something: Nokia itself is distributing the Linux kernel. To comply with the GPL, they can't assert claims against the code they distributed. However, they don't have to give up their rights to sue some other party who enhances the kernel to implement functionality covered by one of their patents.

I don't see any violation of clause 7 here. That clause says that if a GPL covered work cannot be distributed in a way that complies both with the GPL and other restrictions, it can't be distributed at all, but there are no conflicting restrictions on any version of Linux that Nokia is distributing or planning to distribute. In fact, the purpose of Nokia's announcement seems to be to comply with clause 7! They have to avoid imposing other obligations on the existing kernel or they can't distribute it.

You seem to be thinking that Clause 7 imposes more obligations than it does. If it did what you think it does, IBM wouldn't touch Linux, since under your theory they couldn't act against infringement of any software patent as long as the infringing code were attached to a Linux kernel, or even a tiny piece of one.

It seems to me that Nokia is doing the bare minimum and ideally they would go a bit further, like adding relevant patents to a GPL patent pool. But it's a start.

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A limited patent grant from Nokia

Posted May 25, 2005 21:57 UTC (Wed) by mjr (guest, #6979) [Link] (7 responses)

Actually, it does mean something: Nokia itself is distributing the Linux kernel. To comply with the GPL, they can't assert claims against the code they distributed.

Relying on this is walking on shaky ground, but sure, let's assume so. However, this doesn't depend on the fancy patent pledge, and applies only to spesific features that kernels that they distribute happen to include.

I don't see any violation of clause 7 here. That clause says that if a GPL covered work cannot be distributed in a way that complies both with the GPL and other restrictions, it can't be distributed at all, but there are no conflicting restrictions on any version of Linux that Nokia is distributing or planning to distribute.

If the lack of a right to include certain as-such GPL'd code pieces in derivative works that aren't stable Linux kernels published on kernel.org isn't an extra restriction on top of the GPL, I really don't know what is.

A limited patent grant from Nokia

Posted May 25, 2005 22:52 UTC (Wed) by xtifr (guest, #143) [Link] (6 responses)

<blockquote>
If the lack of a right to include certain as-such GPL'd code pieces in derivative works that aren't stable Linux kernels published on kernel.org isn't an extra restriction on top of the GPL, I really don't know what is.
</blockquote>

Not promising to not sue is not a GPL violation. If they actually did go ahead and sue someone for using code from the kernel in a non-kernel project, then, yes, they'd probably be in trouble under clause 7. But simply neglecting to list certain conditions under which they would not (and possibly could not) sue is a far cry from actually suing someone.

Heck, I don't think I've ever explicitly promised to not sue anyone over anything at all. Does that mean I'm violating the GPL? :)

A limited patent grant from Nokia

Posted May 25, 2005 23:07 UTC (Wed) by mjr (guest, #6979) [Link] (5 responses)

You misunderstand. Not promising to sue is certainly not a GPL violation, however, if a case is made that Linux actually needs this patent pledge for some spesific thing, section 7 would prohibit distribution if that thing is included, therefore making the whole pledge pretty much null and void (except perhaps for pure end users, who'd then have no rights to distribute the software anymore).

Of course, a common interpretation is that if a patent isn't actively enforced, then people can just go ahead and do what they will. But what if the patent is something that is enforced (by Nokia), just not for the Linux kernel? This is exactly the sort of trap that section 7 is supposed to prevent.

Now, to clarify, I'm not saying it'd be Nokia who'd be violating the GPL in this case (after all, they might be distributing only kernels without the spesific feature). It'd be everyone who distributed a kernel encompassing said feature (at least if knowing that Nokia has and is asserting patent rights over it; I shan't speculate how much due diligence would be required of the distributors).

Hope this clarifies the issue.

A limited patent grant from Nokia

Posted May 25, 2005 23:58 UTC (Wed) by JoeBuck (subscriber, #2330) [Link] (4 responses)

But Nokia only has to promise not to encumber what it distributes.

Let's take an example. IBM distributes GCC and the rest of the C development toolchain to some of its customers. IBM has also licensed some relevant patents, for example having to do with register allocation, for use in all GPL programs. But there are many other patents they own that haven't been donated. In principle, someone could extend the GNU compiler, assembler, and linker to clone the function of Purify, which IBM owns patents for (specifically, object code insertion for the purpose of detecting memory faults). IBM has not promised not to sue over such a hypothetical event. In fact, Red Hat seems worried enough about this patent that they do not distribute valgrind, which might be considered as infringing, so this patent is having a real effect. Do you therefore claim that IBM is violating the GPL?

Remember, all Nokia has done is mention that they are not promising not to sue some over future hypothetical Linux kernel that contains functionality not in the current kernel and that infringes one of their patents.

A limited patent grant from Nokia

Posted May 26, 2005 0:12 UTC (Thu) by pgb (guest, #30022) [Link]

Actually as of Fedora Core 3 Red Hat does distribute Valgrind. Behind the scenes apparently the patent situation got resolved somehow. But your basic point does stand; they didn't distribute Valgrind because of patent concerns for quite a while, and there are other similar situations.

Analogy to recent W3C situation

Posted May 26, 2005 7:16 UTC (Thu) by mjr (guest, #6979) [Link]

Do you therefore claim that IBM is violating the GPL?

You appear to have missed the entire point of my post, even though I spesifically said that it wouldn't be Nokia who'd be (necessarily) violating the GPL. Please read it again more carefully.

By the by, this situation is somewhat analogous to the W3C situation of recent years, where allowing "field of use" restrictions on patent grants was considered. See the FSF position which explains why this is incompatible with section 7. Then consider that if a field of use restriction is incompatible, restricting the grant to particular versions of a particular program as published by a particular party surely is too.

A limited patent grant from Nokia

Posted May 26, 2005 14:41 UTC (Thu) by madscientist (subscriber, #16861) [Link]

> In fact, Red Hat seems worried enough about this patent that they do not
> distribute valgrind, which might be considered as infringing,

I don't see how Valgrind can infringe Purify. Purify is a link-time tool that modifies the object code emitted by the linker by adding instructions to perform memory analysis. Valgrind has always been a run-time tool and (at least the 2.x versions) doesn't instrument the code: as far as I understand it Valgrind implements a virtual machine to run the user's code as-is, with no instrumentation, where the memory analysis is done in the VM.

If someone is claiming that violates Purify patents that has got to be one BROAD patent grant!!

A limited patent grant from Nokia

Posted May 26, 2005 15:44 UTC (Thu) by Ross (guest, #4065) [Link]

Valgrind doesn't annotate code like Purify does it? I hadn't heard of any
patent concerns about it before, though that doesn't mean much.

A limited patent grant from Nokia

Posted May 26, 2005 2:10 UTC (Thu) by Arker (guest, #14205) [Link]

"But it's a start."

Frankly, I disagree.

It sounds more like a prelude to asserting some sort of patent claims in the future, particularly given the timing. If it's not, then it sounds like an attempt to influence the EU parliament.

Either way, it's an irrelevancy at best.

A patchwork of promises not to use software patents against Free Software isn't a viable solution. No matter how many such pledges you get, and even if the courts would force them to comply with those pledges, there will always be someone that won't pledge.

The only viable solution is to stop software patents from being legitimised in the first place. And so the only action I could imagine coming out of Nokia that I would call a start would be for them to quit lobbying to legitimise software patents.

And I see that as in their own self-interest anyway. There's no way Nokia can compete for long in a marketplace with software patents - they're pushing them out of reflex, not well considered policy.