HP balks at patent provision in GPL update (ZDNet)

[Posted August 2, 2006 by corbet]

According to this ZDNet article, HP is worried about the patent covenant in the GPLv3 draft. "'Suppose somebody added into the Linux kernel some feature that might go into a Linux distribution, (a feature) we had intended to retain as a differentiator and that we were not expecting was going to become open source,' [HP attorney Scott] Peterson said. 'Our mere redistribution of that would mean we could no longer enforce that patent.'"

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HP balks at patent provision in GPL update (ZDNet)

Posted Aug 2, 2006 20:58 UTC (Wed) by mattdm (subscriber, #18) [Link] (53 responses)

So, uh, they want to put features into the Linux kernel but don't want them to become open source, and they're afraid they might encounter problems doing so under the GPLv3?

Maybe they need to go back and read GPLv2.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 2, 2006 21:49 UTC (Wed) by ewan (guest, #5533) [Link] (34 responses)

I think they're worried that if someone else includes something into Linux, HP doesn't spot it straight away, and distributes it, they've given permission they didn't mean to.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 2, 2006 21:55 UTC (Wed) by sumC (guest, #1262) [Link] (25 responses)

Exactly. Straight from the article:

"Essentially, HP believes that language in the new draft could permanently defang a company's ability to sue for patent infringement in a particular situation. Imagine Company A holds a certain patent. If technology covered by that patent is included in GPL-governed software distributed by Company A, then Company A no longer has the right to sue anyone over infringement of that patent. That applies even if Company A itself didn't write or add that technology, or if another entity--Company B--inserted it into the software."

I think their worries are legit.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 2, 2006 22:01 UTC (Wed) by sumC (guest, #1262) [Link] (21 responses)

Just wanted to add that I think that software patents are idiotic so, in a perfect world, this shouldn't even be a problem.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 2, 2006 22:46 UTC (Wed) by wblew (subscriber, #39088) [Link] (20 responses)

However, this is not a perfect world and we have to worry about software patents. HP's concerns are, IMO, legitimate.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 2, 2006 23:07 UTC (Wed) by Arker (guest, #14205) [Link] (19 responses)

Actually, it seems a bit contradictory. They say they don't expect to sue free software over patents, so why should they care that the license makes that explicit?

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 2, 2006 23:41 UTC (Wed) by BlueLightning (subscriber, #38978) [Link] (15 responses)

They might not have plans to sue "free software" (meaning the kernel developers, I guess) but they might want to leave the option open to sue IBM or Red Hat for example if they included technology patented by HP in a one of their Linux-based products without a license.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 3, 2006 1:59 UTC (Thu) by Arker (guest, #14205) [Link] (14 responses)

Which means they want to be able to use patents to create a situation where there is free software that does x, but only HP can distribute said free software, and if someone else does, they get sued?

I don't think they're grasping the concept of free software, if that's really what they're trying to say.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 3, 2006 2:10 UTC (Thu) by drag (guest, #31333) [Link] (13 responses)

That's exactly what they are complaining about.

They want to be able to distribute software that they may want to sue you over later.

That's it. That's exactly what they are complaining about. It's insane.

You want to use Free software.
They want to be able to sue you over that Free software.
They still want to be able to distribute the Free software themselves afterwards.

Their excuse is that they wouldn't be the ones that added the patent infringing software so it's not thier problem if your violating it and they sue you for it. Oh, if they added it then of course they would be required to let you use it without restrictions... but if sometbody ELSE added it, then your fair game.

That's completely bonkers.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 3, 2006 3:36 UTC (Thu) by bojan (subscriber, #14302) [Link] (9 responses)

Let me first say that I'm against software patents. However, they do exist, so:

> Their excuse is that they wouldn't be the ones that added the patent infringing software

Is not really an excuse. Whoever adds such functionality to a piece of free software is infringing on HP's patent, unless they have a valid licence from HP. So, the original contributor is the one breaking the law, whether we like that or not.

Now, the concern that HP have with GPLv3 draft is that if it so happened that HP distributed such software without inspecting it in detail (and therefore not even knowing it contained implementation of their patent), they would automatically license the infringing patent to everyone, therefore legalising what the infringer originally did. Not a good position to be in for a corporation that is about making money.

So, they want to make sure that what protection law provides at the moment for their patents, stays that way.

From the article:

> In contrast, with GPLv2 software, a company that stops distributing the affected software is then free to sue for patent infringement, Peterson said.

So, HP would in fact have to stop distributing software before they sue for infringement. Which would make them be on equal footing with everyone else. GPLv3 draft doesn't give them this opportunity.

In short, I think they are seeing GPLv3 draft as some sort of a "patent liberation trojan". It would be grand if they never noticed, but they obviously didn't just glance at the draft...

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 3, 2006 4:08 UTC (Thu) by Arker (guest, #14205) [Link] (4 responses)

Perhaps if they're so worried about it they should just do due diligence and inspect code before they distribute it?

Really, as simple as that. They want to have their cake and eat it too. They get no sympathy from me on that. If they want to play this ridiculous game of patenting math and suing people for using basic algorithms, no one should do anything to make this easier for them.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 10, 2006 3:40 UTC (Thu) by dlang (guest, #313) [Link] (3 responses)

how long do you think it will take to do 'due diligence' on gnome? or kde? or the kernel? or X?

remember that if HP pre-installs RedHat on a server they are distributing it, so you are saying that they would need to examine everything that RedHat offers before offering to install it.

that's an unreasonable amount of work, and if they _were_ to try and do this it would take a considerable amount of time, leaving a large window when the product (redhat) has been released, but it's not available for installation from HP

Ureasonable burden of software patents falls on patent holder!

Posted Aug 15, 2006 1:45 UTC (Tue) by xoddam (subscriber, #2322) [Link] (2 responses)

> that's an unreasonable amount of work

So what you're saying is that software patents place an undue burden on
the patent *holder*, as well as making life difficult for the rest of us.

Somebody look the lawyers in the eye and tell them to get real. Please!

Ureasonable burden of software patents falls on patent holder!

Posted Aug 15, 2006 1:59 UTC (Tue) by dlang (guest, #313) [Link] (1 responses)

if your purpose is to drive IBM, HP, RedHat, Novell, and others away from GPL software then you have the right approach, make them all vet every single line of code that goes out on a disk of any kind from them and they will either quit useing software that forces them to do this, or go out of business from the effort.

we're not talking about a case of a company putting code into a product, being silent about patents they have over the code, and then springing the patent on people later (there are laws that would prevent someone from doing that)

instead we're talking about someone at orginization A (say gnome) submitting a patch to a desktop widgit that happens to violate a patent owned by some company (say IBM), if IBM then installs gnome on any computer or hands out any cd that has gnome on it these provisions would prohibit IBM from ever sueing anyone over that patent (becouse they had distributed the patented material under GPLv3)

licenses that make demands that are too unreasonable are very likly to be voided (at least in part).

Ureasonable burden of software patents falls on patent holder!

Posted Aug 15, 2006 2:18 UTC (Tue) by xoddam (subscriber, #2322) [Link]

> make them all vet every single line of code that goes out

They're already obliged to do this, for the sake of other peoples'
patents.

http://vger.kernel.org/~davem/cgi-bin/blog.cgi/2006/08/02...

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 3, 2006 9:05 UTC (Thu) by nix (subscriber, #2304) [Link]

A somewhat pedantic point, but patent infringement is not a crime, so nobody in this situation would be breaking any laws.

Can't sue even after stopping distribution

Posted Aug 3, 2006 15:47 UTC (Thu) by Max.Hyre (subscriber, #1054) [Link] (2 responses)

So, HP would in fact have to stop distributing software before they sue for infringement.

That's not how I read it. Conveyance comes with a covenant not to sue, and that covenant stays in effect even when the patentor ceases to convey. Anything else would nullify the FSF's intent. Ceasing distribution still wouldn't allow them to sue.

You receive the Program with a covenant from each author and conveyor [...] that the covenanting party will not assert [...] patent claims in the material that the party conveyed [....]

(The ellipses don't affect the point under discussion.)

Once you've conveyed a patented program, you cannot sue over patents in that program as conveyed. If you want to sue because someone else inserted one of your patents, you must not convey any version of the program containing that patent.

See my comment elsewhere for the implications of someone objecting on those grounds.

Can't sue even after stopping distribution

Posted Aug 3, 2006 22:58 UTC (Thu) by bojan (subscriber, #14302) [Link] (1 responses)

With GPLv2 they could stop distributing and then sue, according to the article. I was *not* referring to GPLv3 draft there.

Can't sue even after stopping distribution

Posted Aug 4, 2006 1:31 UTC (Fri) by Max.Hyre (subscriber, #1054) [Link]

Ummm...right. I should try to read before replying. <sigh>

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 4, 2006 16:27 UTC (Fri) by efexis (guest, #26355) [Link] (2 responses)

You're completely wrong. They're complaining because it would stop them from suing non-free-software companies from patent infringement. They don't mind giving away patent rights to software that's given away, but they want license fees from people who are going to make money from it. Ie, a share of any profits (no profit = nothing to share, profit = give us our fair share). This doesn't effect free software, it effects proprietary software.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 4, 2006 19:44 UTC (Fri) by Arker (guest, #14205) [Link] (1 responses)

IIRC the GPL v3 proposed language clearly only applies to claims on the software under the license.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 7, 2006 8:06 UTC (Mon) by efexis (guest, #26355) [Link]

Yes you could be right, the first page of the linked article says "any software" (not "any gpl3 software"), and HP's objections would seem to indicate the same, but I guess that doesn't make much sense, and elsewhere the article seems to indicate otherwise, apologies. Guess HP just want to keep control over which of their patents they give away to free software, which sounds fair enough from their point of view.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 3, 2006 7:06 UTC (Thu) by NAR (subscriber, #1313) [Link] (1 responses)

They say they don't expect to sue free software over patents, so why should they care that the license makes that explicit?

Because they wouldn't be able to sue non-free software over these patents too?

Bye,NAR

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 17, 2006 12:54 UTC (Thu) by anandsr21 (guest, #28562) [Link]

No the patent exception is only given to the software that was conveyed.
ie the GPL3 software.

So companies could distribute the software but not merge in their proprietory offerings. So HP is just against giving away their Patents to Free Software. I am not really sympathetic about their predicament. I would like the patents on software to be abolished completely. Or at least they should also allow patents on cases ;-).

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 4, 2006 16:24 UTC (Fri) by efexis (guest, #26355) [Link]

No... they might not sue free software for code that 'infringes' on their patents, but with this in gpl3, it would stop them from suing, say, microsoft.

So, anybody who wants to use their patented software in their own proprietary would just have to get it into linux in some form first, then they have free reign.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 3, 2006 13:14 UTC (Thu) by kh (guest, #19413) [Link]

I think HP is two-faced, and needs to decide what side of freedom it is going to side with.

It also really bothers me that in 2006, HP is still sponsoring the SCO conference.

HP can't detect its own patents, much less anyone else's

Posted Aug 3, 2006 15:35 UTC (Thu) by Max.Hyre (subscriber, #1054) [Link] (1 responses)

HP doesn't spot it straight away,---ewan

From the article:

"Suppose somebody added into the Linux kernel some feature that might go into a Linux distribution, (a feature) we had intended to retain as a differentiator and that we were not expecting was going to become open source," [HP's] Peterson said. "Our mere redistribution of that would mean we could no longer enforce that patent."

Dear me, does this mean HP anticipates being unable to determine whether any given one of its patents is in code it distributes?

Sounds like precisely what RMS has been warning about---software patents are a minefield, and as in a minefield, the dangers are hidden until one explodes in your face. No practitioner is able to determine whether certain code embodies a patent, not even one with the resources of HP.

This should give HP cause to think about its support of software patents, not GPLv3.

HP can't detect its own patents, much less anyone else's

Posted Aug 10, 2006 14:16 UTC (Thu) by dwheeler (guest, #1216) [Link]

That's correct. Neither HP nor anyone else with a large patent portfolio has any clue about exactly what's covered (really), especially since most of them are (illegally) granted for ideas covered by prior art. Which is why it's essentially impossible to write real code without "infringing" on hundreds of patents (at least if you go by the books). The system is completely broken.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 3, 2006 0:11 UTC (Thu) by TwoTimeGrime (guest, #11688) [Link] (7 responses)

> I think they're worried that if someone else includes something into Linux,
> HP doesn't spot it straight away, and distributes it, they've given
> permission they didn't mean to.

Except that Linus has already stated that the kernel won't move to GPLv3. There are too many people to get permissions from to even make the switch. This is a non-issue.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 3, 2006 5:48 UTC (Thu) by JoeBuck (subscriber, #2330) [Link] (6 responses)

It's possible that Linus would accept GPLv3 with an exception to permit DRM. He is likely to consider language that better protects him against patent lawsuits to be a feature.

It is also possible that the situation HP is worried about is already the case under GPLv2: distributing a GPL program with a notice saying that it's under the GPL (even v2) might constitute permission.

In any case, if HP wants to distribute GNU/Linux systems, it will soon have a GPLv3 toolchain and an LGPLv3 glibc to deal with, regardless of what Linus does.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 3, 2006 15:51 UTC (Thu) by zlynx (guest, #2285) [Link]

Good point about GCC. Along with Intel, HP does have IP in compiler technology, especially for Itanium.

Linus can only change the license on his own contributions

Posted Aug 3, 2006 16:53 UTC (Thu) by TwoTimeGrime (guest, #11688) [Link] (1 responses)

> It's possible that Linus would accept GPLv3 with an exception to permit
> DRM. He is likely to consider language that better protects him against
> patent lawsuits to be a feature.

Except that Linux is licensed under GPLv2 only, not "GPLv2 and any future version" as other projects like to state. That means that every contributor for every piece of code has to be contacted and agree to relicense their contributions under the GPLv3 license. Linus already stated that it would be a near impossible task and isn't going to even happen.

Linus can only change the license on his own contributions

Posted Aug 22, 2006 15:48 UTC (Tue) by forthy (guest, #1525) [Link]

That's wrong. Linus wrote that "GPLv2 only" without asking other contributors. This is just an interpretative statement of the collection of the Linux sources as distributed by Linus Torvalds, it is not a statement about the license of the original authors. This is, unless specified differently, GPLv2, and GPLv2 contains a clause that it might be "or later". Since you, as recipient of "GPLv2 or later" software are allowed to choose which version, and then distribute it further, Linus just did that: he chose GPLv2. If he choses GPLv3, it will be all right.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 10, 2006 14:06 UTC (Thu) by lysse (guest, #3190) [Link] (2 responses)

What Linus would accept or not is kind of immaterial, for it only applies to code he has sole copyright over. Everyone else who has contributed to the kernel also owns a piece of that copyright, and as I understand it they contributed code to a version of the GPL2 licence with the "or any later version" clause removed. Which means that a change to GPL3 is on the same legal footing as a change to the BSD licence - it would require the permission of every contributor, some of whom can no longer be contacted or found.

Even if every kernel contributor (or, for those who have since died, their executors) could be found and would assent to such a licence change, merely tracking them all down would require a huge multinational financial effort, with possibly unbounded time requirements. Missing just one could result in a lawsuit down the line, and at the very least would leave the kernel in a legal grey area.

So it's never going to happen, regardless of what Linus says, because of his actions when he initially GPL'd Linux.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 16, 2006 20:51 UTC (Wed) by hazelsct (guest, #3659) [Link] (1 responses)

You're incorrect here. The whole kernel is not under a single license. A lot of kernel code has the "or any later version" provision right there in the copyright notice of the source files, inserted by the copyright holders. (And some of it is BSD, but that's irrelevant here.) They can then change those files to V3 or later as soon as V3 is ready.

So would that make the whole thing V3 in terms of patents? On the face of it, not quite: if the V3 part implements HP's patents, then they can't sue anyone to whom the kernel is ever distributed ever again; but they're okay if the V2 part (or BSD part etc.) implements them.

Keep in mind that having HP, IBM etc. able to enforce their patents against, say, Microsoft, son-of-SCO, etc. is essential for a MAD defense for as long as software patents remain valid.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 17, 2006 13:00 UTC (Thu) by anandsr21 (guest, #28562) [Link]

Actually you are wrong. GPLV2 and GPLV3 are incompatible. So you could not use both of them on different files in a single project. So until you changed all the files that are V2 only to V3 you could not use V3 for the files which are V2 or later.

The Linux Kernel will remain V2 only till somebody undertakes the task of finding the owners of most of the kernel code and then rewriting the older code for which owners could not be found or the owners are against V3. This is clearly not a trivial task. And it is downright impossible if even one of the major contributors are against V3.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 2, 2006 22:01 UTC (Wed) by Duncan (guest, #6647) [Link] (1 responses)

It's more like they have a (patent encumbered slaveryware) feature that
someone else adds to the kernel (as freedomware). Assuming the kernel has
changed to GPLv3 by then (at present Linus says it'll stay GPLv2, see
other stories), they can no longer redistribute the kernel (unless they
remove that feature) without forfeiting the ability to sue the person that
added it for patent infringement, since they intended to keep it patent
encumbered slaveryware.

Now strict freedomware proponents won't necessarily see that as an issue,
but I can see how those trying to have their patents and distribute
freedomware too, might have problems working with it. Therefore, I'm not
sure Stallman and the FSF will have a problem with it, but it could be yet
another reason the kernel doesn't go GPLv3, if it is retained, and if
that's the case for enough other stuff as well, the provision will
possibly be reworked even if the FSF doesn't have a direct problem with
it, because the community they are part of will.

It'll be interesting to see how this plays out, in any case.

Duncan

regarding the FSF

Posted Aug 2, 2006 22:53 UTC (Wed) by vblum (guest, #1151) [Link]

[copied from below, as it applies here?]

RMS's original motivation for all this free software business was that his right to fix his own printer wasn't inhibited by someone's "diffentiator," no?

HP still make printers, do they not?

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 2, 2006 22:07 UTC (Wed) by drag (guest, #31333) [Link] (4 responses)

Not quite.

They want to be able to distribute the Linux kernel and then still be able to sue people for using that kernel based on what other people may have added.

Or in other words they want to be able to:
Unkown to HP Person A puts feature into open source software.
HP has a software patent on covering a part of that paticular feature.
HP distributes that software to you and/or other people.
HP sues you for using that open source software and/or that open source software obtained from other sources.
HP is allowed to continue to redistribute that software.

All they are worried about is being forced to make a choice between the option Software Patent litigation and the ability to make money off of open source software.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 3, 2006 2:49 UTC (Thu) by stumbles (guest, #8796) [Link]

"They want to be able to distribute the Linux kernel and then still be able to sue people for
using that kernel based on what other people may have added."

Hmm, that sounds a whole lot like what SCO is trying (and failing) to do.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 3, 2006 3:31 UTC (Thu) by sepreece (guest, #19270) [Link] (1 responses)

While there isn't really enough detail in what I've read to be sure, I *think* their concern is not with people using the patent in free software, but that they could lose the right to sue *anyone* for the use of the patented technology, even in proprietary software.

IANAL; as a layman, the language in section 11 (of draft 2) seems to leave room for an infringer to claim that they had received, by accepting a copy of the free software, the right to use the technology in other software. It's a stretch, but my guess is that it's something a court wouldn't dismiss summarily.

Of course, they could then sue whomever inserted the patent into the free software in the beginning, since that person did not have the license he claimed to have when he applied the GPL to the patented technology.

I assume that the FSF would not lose any sleep over HP's worries about its patents. On the other hand, if all the companies that are funding developers today were to decide that GPLv3 was a threat to their patent portfolios, the GPLv3 might not spread as fast as the FSF presumably hopes.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 3, 2006 4:11 UTC (Thu) by Arker (guest, #14205) [Link]

While it would be nice if it did, I don't think that reading would hold. Unless, of course, the new software was a derived work of the old one, and licensed under the GPL itself.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 3, 2006 5:54 UTC (Thu) by JoeBuck (subscriber, #2330) [Link]

As I understand it, HP cannot simultaneously sue people over use or distribution of the Linux kernel, and distribute that same kernel, even under GPLv2. When it distributes, it must grant the recipients full rights under the GPL. If it is saying that they must have a patent license, that's an additional condition.

It has the option of exiting the Linux distribution business.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 2, 2006 22:29 UTC (Wed) by zlynx (guest, #2285) [Link] (10 responses)

No. HP is worried that Dave in Engineering will create a Really Cool(tm) software technique, and HP will patent it.

While Dave and Ernie (a fictional HP Linux OS engineer) are eating lunch, Dave tells him all about his Really Cool(tm) method to Foo network packets.

Ernie listens carefully, goes back to work, and rewrites the HP network drivers to Foo as they've never Fooed before. It is Great(tm). Ernie releases it to LKML. RedHat and SUSE ship it.

HP lost their patent.

Of course that wouldn't happen because Linux is not going to be GPL-3. But it could happen with some other project.

The way it is now, HP has to conciously release a patent. With GPL-3 it could happen without anyone noticing for a while and then they can't get it back.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 2, 2006 22:53 UTC (Wed) by beattie (guest, #22563) [Link] (2 responses)

This is silly, if HP puts a patented feature in a piece of GPL software, intentionaly or not, they should lose the ability to sue for infringment against is use in GPL software. Otherwise you provide you provide BigBadCorporation with a way to trap people.

As for your scenerio if HP can't train their people better than that, then they have worse problems that GPLv3

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 3, 2006 17:22 UTC (Thu) by brouhaha (subscriber, #1698) [Link] (1 responses)

That's not the issue. What they care about is:

Company X adds a feature to GPLv3 software in a Linux distribution (probably some package other than the kernel)
HP has a patent that is relevant to that feature
HP redistributes the package without realizing that it uses their patent
Company Z ships proprietary software using the patent

What HP is worried about is that under the GPLv3 terms, they would lose the ability to sue company Z for using their patent in proprietary software. It has nothing to do with suing anyone in the free software community.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 10, 2006 14:21 UTC (Thu) by dwheeler (guest, #1216) [Link]

No, the patent release only affects (downstream) GPL programs. HP is free to sue non-GPL programs that violate the patent.

The problem (from their viewpoint) is that it requires that HP review an entire program, even if they only change one line. It's easier to say, "I know that the change _I_ made is okay", but hard to say that about today's big programs.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 3, 2006 0:23 UTC (Thu) by wookey (guest, #5501) [Link]

But this is good, surely? HP wants to have cake and eat it. They can't ship patent-encumbered Free Software.

OK, under V2 they could stop shipping it and then sue, but that's just bad form. And just because the US patent system is totally out of control doesn't mean the GPLv3 should be watered down accordingly. It could have much stricter anti-swpat clauses - HP should be grateful the FSF has been quite restrained on this point.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 3, 2006 2:43 UTC (Thu) by josh_stern (guest, #4868) [Link] (3 responses)

Here's a different kind of example.

Suppose HP has a patent on a particular way of driving color printers. A competitor that wants to un-patent this could slip the method into a driver without making a big fuss over it, and if HP didn't find out and started shipping the kernel with that driver they could lose the patent inadvertently. Maybe there is some legal reason that couldn't happen this way, but that's how I understood the concern.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 3, 2006 12:06 UTC (Thu) by kleptog (subscriber, #1183) [Link] (2 responses)

In your example all HP has to prove is malice on the part of the competitor and they win. Courts are not stupid. For unintentional infringement they may go either way, but if you're intentionally screwing people over, they will come down on you.

Intention is everything.

Now we get to the real point

Posted Aug 3, 2006 14:39 UTC (Thu) by justme (guest, #19967) [Link]

If you modify the OP's example to: the competitor puts a reasonable but, unknown to them, HP-patented, feature into their driver...

Since your point about intention is correct, what HP *really* wants is to be able to sue in that case, too.

How should the free software community feel about that? Well, most of us don't like the idea that we will get stepped on for distributing useful software, and the patent provisions of GPLv3 are pointed right at that.

It seems to me that HP wants to retain the ability to build software patent tollbooths all over the place, and they want to decide, on a case-by-case basis, whether free software gets a free pass. Are we ready for HP to decide where we are allowed to tread, while still distributing community software? Seems like a one-way street to me.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 3, 2006 14:48 UTC (Thu) by southey (guest, #9466) [Link]

Nope, while they would solve that problem, they would then be doomed because they would be in violation of the proposed GPL V3.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 10, 2006 15:37 UTC (Thu) by vonbrand (guest, #4458) [Link] (1 responses)

No, the problem is that Ernie might even have nothing to do with HP. Ernie goes on and reads up HP's patent and (illegally!) patches Linux, and the patch is accepted (noone in Linux can check, reasonably, and Ernie sweared that the contribution is legitimate). Or even Ernie comes up with the same idea on his own, doesn't matter. If HP now distributes Linux with Ernie's patch even once, they can't now sue MSFT for using that technique in Vista, as they contributed the patent (indavertently) to the whole world.

Sure, RMS and the FSF (and MSFT for that matter) would be happy. But HP quite a bit less so.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 17, 2006 13:11 UTC (Thu) by anandsr21 (guest, #28562) [Link]

"HP now distributes Linux with Ernie's patch even once, they can't now sue MSFT for using that technique in Vista, as they contributed the patent (indavertently) to the whole world."

This is false. The patent exception is given only to software that was distributed by the company. Not to other software. So if HP distributes Linux with Ernie's patch. MS could base their Vista on Linux, but they couldn't include the driver into their proprietory product.

Do you think that it is so easy to include GPL software in Proprietory product?

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 2, 2006 22:46 UTC (Wed) by vblum (guest, #1151) [Link]

Yes. The GPLv3 does not like patents. Patenting mere mathematics (\approx algorithms) is evil.

RMS's original motivation was that his right to fix his own printer wasn't inhibited by someone's "diffentiator," no?

Happy patenting then, HP. (It is actually scary that HP is one of the really cooperative and friendly companies in this game. If they have such reservations, there's a lot of work left to do.)

[That the GPL provision in question could be used to thus defang a purely defensive patent portfolio is a practical issue, I know.]

HP balks at playing fair

Posted Aug 3, 2006 2:24 UTC (Thu) by bignose (subscriber, #40) [Link]

> Suppose somebody added into the Linux kernel some feature that might go
> into a Linux distribution, (a feature) we had intended to retain as a
> differentiator and that we were not expecting was going to become open
> source

(Others have already pointed out that Linux will reportedly not be released under GPLv3. Let's assume they mean some other program.)

If your idea of a "differentiator" is "something that forces everyone else to use different algorithms", then it seems the GPLv3 is right to deny you license to distribute -- that's totally against its spirit.

The GPL is *designed* to free users from unfair restrictions. That HP wants to "differentiate" by placing onerous restrictions on people who may not even be their customers, means they lose the license granted by the GPL. Sounds fair to me.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 3, 2006 8:24 UTC (Thu) by Richard_J_Neill (subscriber, #23093) [Link] (2 responses)

Actually, I think the GPL should go further. In my view, it should say:

If you assert any software patent against anyone (except in a defensive lawsuit), then:
a)You lose the right to distribute GPL software
b)You lose the right to use GPL software
c)Anyone with a patent which they granted to all GPL software, could then sue you.
d)The only way out of this is to place all your remaining "IP" into a common pool, protected in the same way.

The effect would be to totally destroy the mistaken concept of IP, and make it impossible to ever assert a patent. Sort of like the League of Nations: everyone attacks the first aggressor; the condition of surrender is that you join the "League".

In short, I am proposing an extremely viral "IP" license designed to be as infectious as possible, aiming to infect every patent in existence!

It could be done - there are enough of us who'd like to be free of "IP" on principle, and quite a lot of others who'd like to see it go, as long as, by giving up their own rights, they didn't become vulnerable to other predators.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 3, 2006 9:08 UTC (Thu) by nix (subscriber, #2304) [Link]

Copyright law can't do this except in countries where merely running programs is restricted because of the temporary copies made in RAM during execution (eugh).

Patent and trademark law can't do that either.

HP balks at patent provision in GPL update (ZDNet)

Posted Aug 10, 2006 12:24 UTC (Thu) by smitty_one_each (subscriber, #28989) [Link]

>In short, I am proposing an extremely viral "IP" license designed to be as infectious as possible, aiming to infect every patent in existence!

While I'm an FSF member and think that the GPL makes beautiful common sense, I submit that you are perhaps over-achieving here.

It's one thing to enjoy a particular viewpoint on an issue. It's quite another to turn one's viewpoint into a weapon and commence flogging all other viewpoints, wildly misguided though they may be.

History is littered with the debris of attempts to coerce. Let the sheer sensibility of the GPL drive the change. Possibly a slower route, yet having lower collateral damage by far.

The GPL models one of the major motives for doing software. It is not the only motive, and I haven't yet seen any analysis from RMS or elsewhere showing that the GPL magically precludes other motives. Give me ideas, and hold the ideology, please.

Balance of risks

Posted Aug 3, 2006 10:43 UTC (Thu) by dark (guest, #8483) [Link] (3 responses)

Hmm. In order to deal with this problem, HP would have to check whether a new version of a GPLv3 program infringes on any of their patents, before they distribute it.

What the question boils down to is, is this a reasonable thing to do? Is this a reasonable thing to expect anyone to do?

I really don't see more options than "yes" or "no" here.

If yes, then HP should just do it. They're a corporation, they can put processes in place for it.
If no, then HP admits that performing this kind of check is unreasonable. They shouldn't expect anyone else (i.e. the free software developers) to do it for them.

Note that even though I phrased the question this bluntly, it is still slanted heavily in HP's favor. It's much easier for them to do this check than it is for anyone else, since they are presumably familiar with their own patents and will know what to look for. Also, the balance of risks is in their favor.

If HP has to do this check before distributing, and they miss a patent, then the worst that can happen is that they lose enforcement rights to that patent.

If free software developers have to do this check before releasing, and they miss a patent, then the worst that can happen is that their wealth and livelihood are completely destroyed by HP's lawyers.

Balance of risks

Posted Aug 3, 2006 13:41 UTC (Thu) by arcticwolf (guest, #8341) [Link]

Good point. Dave Miller also has an interesting response to this, BTW: http://vger.kernel.org/~davem/cgi-bin/blog.cgi/2006/08/02...

Exactly

Posted Aug 3, 2006 14:53 UTC (Thu) by justme (guest, #19967) [Link]

And furthermore, the fact that this inequitable situation (developers expected to investigate all possible patent infringements or risk bankruptcy) is in fact the status quo is the best argument against software patents, and patent proliferation in general.

Balance of risks

Posted Aug 17, 2006 13:18 UTC (Thu) by anandsr21 (guest, #28562) [Link]

You have really really hit the nail on the head.
If anybody reads this there can be no question in their minds as to what is more logical. It also shows how illogical software patents are.