Open source must be able to deal with patent licenses if necessary

Posted Oct 19, 2010 2:36 UTC (Tue) by FlorianMueller (guest, #32048)
Parent article: Open Standards in Europe: FSFE responds to BSA letter

I, too, fought very hard against the BSA over the European software patent directive. In this context, it's the FSFE itself that presents mostly fiction, not facts.

It's a dishonest argument to claim that open source licenses don't allow inbound patent licensing from third parties. This is definitely possible, and it's practiced all the time, even with GPLv2. GPLv3 is the only exception, and it's an irrelevant license because it's not pragmatic.

I think it hurts open source - as opposed to helping it -- if some claim that this can't be done. If developers invest a lot of effort into a project, and if there is a patent (or a list of patents) that can't be worked around, then licensing can be a solution.

Not that it's preferable over the abolition of such patents -- but abolition isn't realistic and licensing happens all the time. Even Red Hat distributes GPLv2'd software despite having committed itself to a royalty payment on such software as part of the FireStar settlement (just look at sections 3 and 5 of that document), and it's more recent settlement with an Acacia subsidiary wasn't disclosed (so much for Red Hat's openness) but the circumstances also suggest very, very strongly that they paid.

Apart from misrepresenting the feasibility of inbound patent licensing, the FSFE also appears to care about interoperability very selectively. The FSFE doesn't seem to care if its lobbying partners (especially IBM and Oracle) deny interoperability. Since the European Commission felt forced to launch two parallel probes of IBM's conduct, one of which relates to IBM's refusal to provide interoperability with open source, the credibility of that "open standards" camp is not what the FSFE would like to believe or would like to make the community believe. It's pretty clear that the FSFE teams up with companies who just seek to increase their operating margins and gain other economic benefits without truly being interested in open standards (as IBM shows in the mainframe context and Oracle in the OpenOffice and Java contexts).

In my blog post I linked to further above I also mention the story of the MXM license, a license that not only allows inbound patent licensing but also allows contributors/distributors to later collect patent royalties from downstream users. That open source license was drafted by the FSFE's outside counsel -- not in an FSFE capacity (a fact he made very clear), but it shows that even in FSFE circles there are people who can be pragmatic if they have to.

Open source must be able to deal with patent licenses if necessary

Posted Oct 19, 2010 5:48 UTC (Tue) by bojan (subscriber, #14302) [Link] (2 responses)

> GPLv3 is the only exception, and it's an irrelevant license because it's not pragmatic.

Yeah, try running Samba or rsync. Irrelevant my arse.

Open source must be able to deal with patent licenses if necessary

Posted Oct 19, 2010 8:31 UTC (Tue) by mjthayer (guest, #39183) [Link] (1 responses)

> > GPLv3 is the only exception, and it's an irrelevant license because it's not pragmatic.

> [...] Irrelevant my arse.

Isn't that the whole game? The FSF had to be more pragmatic than they might have liked to build up a standing. Now that they have it they want to spend that credit to push through things that are less pragmatic but important to them. Helped of course by the fact that they are also important to large numbers of FLOSS people too, so they don't have to spend too much of said credit.

Open source must be able to deal with patent licenses if necessary

Posted Oct 19, 2010 22:30 UTC (Tue) by bojan (subscriber, #14302) [Link]

I don't think we should attempt to rewrite history. GPLv3 was drafted to counter specific threats to free software, such as Tivoization and patent deals. These things were barely on the horizon when GPLv2 was released.

What I was arguing in my post is that GPLv3 cannot be dismissed, because a crucially important piece of software that covers Windows interoperability is licensed under it. Also, thousands of businesses us rsync daily for backups, file syncs etc.

Open source must be able to deal with patent licenses if necessary

Posted Oct 19, 2010 8:43 UTC (Tue) by cybercrow (guest, #70711) [Link] (49 responses)

>It's a dishonest argument to claim that open source licenses don't allow inbound patent licensing from third parties. This is definitely possible, and it's practiced all the time, even with GPLv2.

Nice try. Quote yourself as an proof of your arguments. This is not how it works, sorry.

Open source must be able to deal with patent licenses if necessary

Posted Oct 19, 2010 8:52 UTC (Tue) by FlorianMueller (guest, #32048) [Link] (48 responses)

I didn't "quote" myself -- I pointed to a more detailed analysis than would be posted to a discussion forum, and I made it clear that it's my analysis. However, my analysis contains empirical evidence. Red Hat, Novell and (not mentioned in that post, but still a fact) Canonical have all entered into patent license agreements concerning GPLv2'd software, plus Samsung, LG, HTC, TomTom... so much empirical evidence is overwhelming proof that it can work.

Open source must be able to deal with patent licenses if necessary

Posted Oct 19, 2010 11:22 UTC (Tue) by Wol (subscriber, #4433) [Link] (47 responses)

"So much empirical evidence" ...

Well, there's a heck of a lot of empirical evidence that classical physics works. Doesn't stop it being wrong, though!

Cheers,
Wol

Open source must be able to deal with patent licenses if necessary

Posted Oct 19, 2010 11:24 UTC (Tue) by FlorianMueller (guest, #32048) [Link] (43 responses)

Empirical evidence certainly ups the ante for those who disagree. In this case, if the free software movement believes that those GPLv2-based license deals aren't OK, they should sue Red Hat, Novell, Canonical, HTC, TomTom etc. and see how far they get. Only if they do so and prevail, then they can overcome the empirical evidence that the existence of those license deals represents.

Not OK

Posted Oct 19, 2010 12:05 UTC (Tue) by pboddie (guest, #50784) [Link] (22 responses)

In this case, if the free software movement believes that those GPLv2-based license deals aren't OK, they should sue Red Hat, Novell, Canonical, HTC, TomTom etc. and see how far they get.

Of course the Free Software movement, or at least the FSF, doesn't believe that such deals are OK: that's why GPLv3 was drafted, and is presumably why you regard it as "unpragmatic". But since the very nature of organisations like the FSF and FSFE is to advocate change, I don't think you should expect them to go out of their way to advocate "pragmatism", especially when such "pragmatism" appears to be about establishing some kind of VIP line for fast-track and/or exclusive access to the benefits of Free Software.

Not OK

Posted Oct 19, 2010 12:11 UTC (Tue) by FlorianMueller (guest, #32048) [Link] (19 responses)

Of course the Free Software movement, or at least the FSF, doesn't believe that such deals are OK: that's why GPLv3 was drafted

I meant legally OK. No one debates philosophy. The argument made by FSFE and others in the EU open standards debate is that those FOSS licenses just don't allow it, period. That's the problem. If they just said they don't like it (but admitted that it can work legally), that would be a much better basis for finding a solution.

Not OK

Posted Oct 19, 2010 13:18 UTC (Tue) by pboddie (guest, #50784) [Link] (17 responses)

I meant legally OK. No one debates philosophy.

Such a great way to brush aside any discussion, particularly when policy-making is all about defining what should be rather than what is.

The argument made by FSFE and others in the EU open standards debate is that those FOSS licenses just don't allow it, period.

They don't allow it if the goal is to be upheld that the four freedoms can be practised by anyone. Hence my remark about the VIP queue.

If they just said they don't like it (but admitted that it can work legally), that would be a much better basis for finding a solution.

Finding a solution to what? The need for a captive audience for patent-holders, guaranteed by public standards and policies? It's interesting how supposed advocates of the free market are always first in line to ask for government favours.

Not OK

Posted Oct 19, 2010 13:25 UTC (Tue) by FlorianMueller (guest, #32048) [Link] (16 responses)

Such a great way to brush aside any discussion, particularly when policy-making is all about defining what should be rather than what is.

Contrary to me brushing aside any discussion, it's you who widens the debate in a way that doesn't reflect the reality of the political process we're talking about.

I said before that there would be no problem with FSFE and others saying that they don't like software patents and patent royalties. The problem is that their central argument is the false claim that FOSS can't deal with this.

They are entitled to their philosophy (by the way, while I don't share that fully, I'm certainly much closer to it than to the BSA's philosophy). They just aren't entitled to their own made-up "facts".

They lie to politicians in the EU about the impact of those patent deals because they believe they're more likely to get their way by dishonestly misrepresenting, misleading, and overstating.

Not OK

Posted Oct 19, 2010 13:30 UTC (Tue) by nix (subscriber, #2304) [Link]

Wow, with comments like that you're bloody lucky you're not in the UK. (Actually UK libel law is so ludicrously strict that this being viewable in the UK is probably sufficient grounds for the people who consider themselves libelled to launch a libel suit: libel suits launched on much flimsier grounds have succeeded here, much though everyone else wishes they hadn't. But FSFE aren't massive corporate barons and have actual ethics so are unlikely to do that.)

Not OK

Posted Oct 19, 2010 13:43 UTC (Tue) by Wol (subscriber, #4433) [Link]

"that doesn't reflect the reality of the political process we're talking about."

You mean a bunch of politicians and lobbyists talking meaningless bullshit?

I saw an interesting article about that Philadelphia "pi = 3" bill recently? And do you know WHY it failed?

Because a visiting professor kindly pointed out to several prominent politicians that, if you did the maths as *PRE*scribed by the bill, you ended up with the result "pi = 3.2".

And when the European politicians realise they've been fed that sort of bullshit, they are NOT going to be impressed.

Dunno about you, but if someone makes a fool of me, I take offence. And if your career depends on looking sage and wise, the offence could be very damaging to the lobbyist ...

Cheers,
Wol

Not OK

Posted Oct 19, 2010 14:20 UTC (Tue) by pboddie (guest, #50784) [Link] (13 responses)

The problem is that their central argument is the false claim that FOSS can't deal with this.

The uninhibited practice of the freedoms around Free Software - something which organisations like the FSF and FSFE consider an essential part of Free Software licensing - is incompatible with the kind of "VIP lounge" concept that you seem to consider acceptable or "pragmatic". I believe you may even have made this point yourself in some recent discussion or other, probably in a condescending "this is the world - live with it!" tone while trying to get everybody to specifically discuss Motorola's defence strategy against Microsoft (a matter for their lawyers, I would argue) rather than the wider issues of more general interest.

So the organisations responsible for the licensing of the bulk of Free Software are not lying, unless you are trying to redefine Free Software as something it isn't: "VIPs this way, everybody else wait in line", effectively "FOSS Light".

Not OK

Posted Oct 19, 2010 14:46 UTC (Tue) by FlorianMueller (guest, #32048) [Link] (12 responses)

Where they're lying is where they say it doesn't work due to FOSS license terms. Not where they say it's against FOSS philosophy.

Not OK

Posted Oct 19, 2010 16:18 UTC (Tue) by pboddie (guest, #50784) [Link] (11 responses)

Well, given that even GPLv2 and LGPLv2.1 bring a degree of uncertainty as to whether someone is actually permitted under those licenses to acquire patent licences only for themselves and then to distribute the code to others - the defence of such behaviour being, as I recall, that "the patent bit isn't in the right section of the licence", "they used the wrong word" and "we aren't being sued, so it's OK", where the former excuses seem to contradict what lawyers keep saying about legal texts needing to be interpreted in the context of what the intent of the text actually is - I think it would be inappropriate for the FSFE to say, "No, it's all actually OK after all!"

Just because no-one has sued someone else over such a matter doesn't mean they won't, and it's certainly not any kind of a decent basis for public policy.

Not OK

Posted Oct 19, 2010 17:57 UTC (Tue) by FlorianMueller (guest, #32048) [Link] (10 responses)

In my opinion you can't have your cake and eat it. Either FSFE is serious about incompatibility of such deals with the GPLv2, and then its US mothership called FSF, which has all the Linux copyrights assigned to it, has to enforce the GPLv2's terms; or, which is the way I view it, the incompatibility claim blows things out of proportion and is not an honest way to have a debate over interoperability policy.

You conclude with a remark about "a decent basis for public policy." I'm focused at this poin t on a decent basis for a facts-based debate on public policy. Without the former, we may never get to the latter.

Not OK

Posted Oct 19, 2010 18:33 UTC (Tue) by dlang (guest, #313) [Link] (9 responses)

the FSF does not have all the linux copyrights assigned to it.

Not OK

Posted Oct 19, 2010 18:35 UTC (Tue) by Trelane (subscriber, #56877) [Link]

Was it the lack of a "GNU/" prefix that tipped you off? ;)

Not OK

Posted Oct 19, 2010 18:35 UTC (Tue) by FlorianMueller (guest, #32048) [Link] (7 responses)

Even if it doesn't have all, even a small part would be legally sufficient to enforce GPLv2 if there was a breach.

Not OK

Posted Oct 19, 2010 18:37 UTC (Tue) by dlang (guest, #313) [Link] (6 responses)

true, it would be, but the FSF has never done any GPL enforcement on the linux kernel.

other people have, but not the FSF.

Not OK

Posted Oct 19, 2010 18:47 UTC (Tue) by FlorianMueller (guest, #32048) [Link] (5 responses)

We make progress through this exchange and I appreciate your clarifications.

After four years since the Microsoft-Novell days -- four years during which various other Linux patent deals involving royalty payments were done -- no one has enforced the GPLv2. That's a fact. If this is such a central thing to the GPL, the FSF or another enforcer would have had to do so.

But RMS himself admitted that even the early drafts of GPLv3 (v3!) would have allowed the Microsoft-Novell type of deal. That proves they just don't have a legal basis. So FSFE shouldn't tell EU politicians there's a legal problem with GPLv2. They should admit they just don't like software patents (I don't like those patents either) and then have an honest debate over what to do.

Not OK

Posted Oct 19, 2010 21:59 UTC (Tue) by pboddie (guest, #50784) [Link] (4 responses)

But RMS himself admitted that even the early drafts of GPLv3 (v3!) would have allowed the Microsoft-Novell type of deal. That proves they just don't have a legal basis.

No, it only "proves" that early drafts of GPLv3 would have allowed (or perhaps more correctly, may not have prevented) the "mutual promise not to sue other people" kind of agreement that Microsoft-Novell was all about.

So FSFE shouldn't tell EU politicians there's a legal problem with GPLv2.

Even when advice to the contrary has already been given?

They should admit they just don't like software patents (I don't like those patents either) and then have an honest debate over what to do.

Repeating things about people "lying" and things being "irrelevant" over and over again doesn't make them true. As I already pointed out, the FSF* organisations clearly regard there to be issues with combining copyleft licences (and others) with "every man for himself" patent licences. That no-one has sued the various large corporations indulging in such activities over the matter says a lot less about whether those corporations are in the right (legally or ethically) than it does about the general imbalance in the average legal system where it could well be a hard slog to get a judgement on a matter of such importance against a determined and wealthy opponent.

Not OK

Posted Oct 20, 2010 3:45 UTC (Wed) by FlorianMueller (guest, #32048) [Link] (3 responses)

I would prefer not to have to repeat my remarks on honesty. Unfortunately, you and some others don't make that distinction. In your latest post you again brought up "legally or ethically", which doesn't help to keep both dimensions separate.

The "advice to the contrary" you link to is weak tea compared to the fact that it's common practice now in the industry and not legally challenged by the free software movement.

Finally, you make the cheap excuse that under this legal system it's so hard to fight against a large corporation. Oh come on, how more pathetic can it get? Would this mean free software is lost anyway because might makes right in the legal system? By the way, if there's a worldwide breach of the GPL, such as by global players of the Red Hat or Samsung kind, you can do forum shopping and pick cheap place, such as my jurisdiction (Germany) and sue there first. But it hasn't been done anywhere by anyone.

Not OK

Posted Oct 20, 2010 11:28 UTC (Wed) by pboddie (guest, #50784) [Link]

I would prefer not to have to repeat my remarks on honesty.

So would we all.

The "advice to the contrary" you link to is weak tea compared to the fact that it's common practice now in the industry and not legally challenged by the free software movement.

Well, I'm just explaining how the FSFE people concerned can make their particular claims and not go round winking to each other about how they were really "lying" afterwards. And you go on again about how no-one has sued anyone, but again that doesn't have anything to say about whether someone could do so once everyone has "agreed" that there's no underlying problem.

You know, quite a few people had a discussion on this very site about patent-encumbered standards a few months ago. Look it up: it was all about MPEG, Theora, Mozilla and HTML5. There were three principal positions:

"Patents in standards should be avoided because it ends up mandating a form of private taxation on implementers."
"Patents in standards don't matter because even though our code is affected, we don't care and no-one is going to come after us anyway."
"Patents in standards are OK because it's just a matter of paying a fee and then we're covered."

And yes, the discussion involved persuading the people taking the second position that although their code is nice, that perhaps they should consider what the people taking the third position were doing with their code. And no, sadly, those people representing the developers weren't particularly interested.

Not OK

Posted Oct 24, 2010 7:17 UTC (Sun) by Ze (guest, #54182) [Link] (1 responses)

I would prefer not to have to repeat my remarks on honesty.

Is that because you seem to have a problem with honesty yourself? You've made dishonest claims about GPLv3 and GPLv2.

You claim that GPLv3 is irrelevant because no major projects have adopted it , yet you've been shown evidence to the contrary that the tiniest bit of research on your part would've found.

You've also claimed that GPLv2 is patent compatible using extremely poor logical reasoning. It's spurious logic to claim that just because the text of early drafts of GPLv3 doesn't protect against software patents that GPLv2 doesn't protect against them , when the concerning them between the two had most probably changed. Someone who is so interested in FOSS and software patents surely can't claim that such a basic flaw in reasoning is an honest mistake....

Could the reason you don't want your claims about honesty repeated is because you have a problem with honesty yourself?

Not OK

Posted Oct 24, 2010 11:39 UTC (Sun) by FlorianMueller (guest, #32048) [Link]

Of course the patent-related language changed between GPLv2 and (the early drafts of) GPLv3. But the fact of the matter is that a stricter language on patents was a GPLv3 design goal from the outset. So it's perfectly reasonable (except for people who want to create unreasonable doubt) to say that there's a continuum in terms of patent-licensing-related ridigity ranging from GPLv2 to early drafts of GPLv3 to the final version of GPLv3:

GPLv3_final > GPLv3_early > GPLv2

Let X be on said continuum the point at which you can prevent the Novell type of deal:

GPLv3_final > X > GPLv3_early (according to RMS)

Thus, X > GPLv2 (or more likely, X >> GPLv2).

Further empirical evidence -- as if it were needed -- for the latter is that Novell's deal never got challenged in court during all those years, even though the SFLC certainly would have the funds in place to do so.

Let Y be on said continuum the point at which Red Hat can, according to Eben Moglen, do the FireStar type of deal, where Red Hat paid a royalty:

Y > GPLv3_final > GPLv3_early > GPLv2

Thus, Y > GPLv2 (or more likely, Y >> GPLv2).

Not OK

Posted Oct 19, 2010 13:25 UTC (Tue) by Wol (subscriber, #4433) [Link]

"I meant legally OK. No one debates philosophy."

Why not? The whole point of the "mathematics" debate is it is a philosophical debate. Which is intended to prove that the law on patents is an ass. More to the point, it is a self-contradictory unenforceable ass.

And WHEN (not if) the Judges realise what's going on, there's going to be a pretty massive bonfire of the vanities (or bonfire of the patents, if you prefer it).

Cheers,
Wol

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Posted Oct 19, 2010 13:37 UTC (Tue) by Wol (subscriber, #4433) [Link]

Add to this, RMS is the *last* person to be accused of pragmatism.

And hindsight pretty much invariably shows he was right to dig his heels in and refuse to compromise.

Cheers,
Wol

Not OK

Posted Oct 20, 2010 15:49 UTC (Wed) by armijn (subscriber, #3653) [Link]

Karsten Gerloff (FSFE president) has written down how FSFE's open standards work is actually down. It's definitely worth a read: http://blogs.fsfe.org/gerloff/?p=408

Open source must be able to deal with patent licenses if necessary

Posted Oct 19, 2010 12:07 UTC (Tue) by drag (guest, #31333) [Link] (18 responses)

I can't make any sense of your logic here and I don't know what your aiming at.

Plus GPLv3 is far from the first open source license to have patent language in it.

Open source must be able to deal with patent licenses if necessary

Posted Oct 19, 2010 12:10 UTC (Tue) by FlorianMueller (guest, #32048) [Link] (17 responses)

I can't make any sense of your logic here and I don't know what your aiming at.
Plus GPLv3 is far from the first open source license to have patent language in it.

Your second sentence is ultimate proof of the first: if you don't understand why GPLv3 is different in its patent language from, say, the Apache license 2.0, then it will be very hard to have a facts-based discussion. So it's not just my logic that you can't make sense of. The problem seems to be more fundamental. I actually explained the difference between ASLv2 and GPLv3, by the way.

Open source must be able to deal with patent licenses if necessary

Posted Oct 19, 2010 12:24 UTC (Tue) by drag (guest, #31333) [Link] (16 responses)

What does not make sense is the whole 'they should sue everybody' part.

Open source must be able to deal with patent licenses if necessary

Posted Oct 19, 2010 12:27 UTC (Tue) by FlorianMueller (guest, #32048) [Link] (15 responses)

What does not make sense is the whole 'they should sue everybody' part.

I didn't say "everybody" -- just those who distribute GPLv2'd software after having obtained patent licenses from third parties. The only way to resolve a legal disagreement is to let the judges decide. Do you have any other/better proposal?

Open source must be able to deal with patent licenses if necessary

Posted Oct 19, 2010 12:38 UTC (Tue) by drag (guest, #31333) [Link] (14 responses)

They work out any conflicts themselves without suing each other.

Open source must be able to deal with patent licenses if necessary

Posted Oct 19, 2010 12:41 UTC (Tue) by FlorianMueller (guest, #32048) [Link] (12 responses)

They work out any conflicts themselves without suing each other.

I didn't say they had to sue each other if it can be avoided. I said that those companies do what they do (for instance, Novell did its deal with Microsoft in 2006), and if the free software movement claims after all of that time and all of those deals (and many more of them will be done now, especially in connection with Android) that those deals aren't in compliance with GPLv2, then either the FSF has to enforce the GPLv2 (if necessary, in court) or it has to be more honest and admit that GPLv2 doesn't prevent inbound patent licensing.

Open source must be able to deal with patent licenses if necessary

Posted Oct 19, 2010 13:03 UTC (Tue) by drag (guest, #31333) [Link]

I expect that the reality is that the GPLv2 will prevent 'inbound patent licenses' depending on the nature of the particular patent license.

This is something that Novel, Microsoft, Google, and et al seem to be dealing with in one way or another. Otherwise what else was the point of the 'covenant' and such things?

Open source must be able to deal with patent licenses if necessary

Posted Oct 23, 2010 18:33 UTC (Sat) by Arker (guest, #14205) [Link] (10 responses)

This is fundamentally illogical Florian. Courts are a last resort at best. Before you go to court over something like this you have to analyse whether it is a worthwhile use of scarce resources. That's a tactical decision, and has little to do with the legalities. It's not like trademark where you have a legal obligation to attack or lose either. A million cases can go by where there are technical violations of the GPL that no one finds worthwhile to sue over, a million more where they sue and settle out of court, not one case actually resulting in a judgement, without it having any direct bearing on case #2,000,001.

The question is more complex than a selected soundbyte from FSFE makes it sound? Sure. But when you turn around and claim the exact opposite, you arel being far more inaccurate than they were.

Open source must be able to deal with patent licenses if necessary

Posted Oct 23, 2010 18:38 UTC (Sat) by FlorianMueller (guest, #32048) [Link] (9 responses)

The comment to which you replied actually said that they wouldn't have to go to court if it can be avoided. However, after four years it's fair to say that they don't have a case to enforce the GPL (otherwise they would have done something). After four years during which ever more such deals have been signed, it's clear that it's GPLv2-compliant behavior.

I didn't say that by tolerating those deals they change the legal status of those deals. What certainly happens is that companies feel good about doing ever more of those deals.

If they (in this case, FSF's European affiliate) tell politicians that such deals can't be reconciled with the GPL, it's striking that they don't enforce the GPLv2 where they could if they were right.

Open source must be able to deal with patent licenses if necessary

Posted Oct 23, 2010 21:35 UTC (Sat) by Arker (guest, #14205) [Link] (1 responses)

However, after four years it's fair to say that they don't have a case to enforce the GPL (otherwise they would have done something).

No, it's not fair to assume this at all, I just explained to you why not, and your reply is simply to reässert your ill-founded assumption.

After four years during which ever more such deals have been signed, it's clear that it's GPLv2-compliant behavior.

No, no, no. All that can be inferred from this (and I am generously assuming you are 100% correct on the facts) is that no one has both standing and sufficient resources and motivation to sue over any of these deals yet. Period. Anyone with the slightest familiarity with civil law would understand that.

I didn't say that by tolerating those deals they change the legal status of those deals.

You say that the lack of action proves they are legal, the difference is splitting hairs. Both are wrong, and dangerously so.

Before you bring a suit you need not only a solid legal case as the wrongness of the defendent, you also need standing (FSF cant sue over linux, no, they dont keep copyright on linux code as you so bizarrely asserted a little earlier) and you need a theory of damages that could generate an award sizeable enough to at least pay the lawyers, or some other compelling business case for the expense. This is the reason you havent seen anyone suing Novell - not because what they are doing isnt clearly, demonstrably in violation of the license, but only because those with standing to object have no interest in filing the case.

Open source must be able to deal with patent licenses if necessary

Posted Oct 23, 2010 23:24 UTC (Sat) by FlorianMueller (guest, #32048) [Link]

Of course the FSF has copyrights assigned that it could use here if it wanted. And the assumption that FSF couldn't afford it is also wrong. What is the SFLC for? It has an annual budget of several million dollars.

Open source must be able to deal with patent licenses if necessary

Posted Oct 23, 2010 23:02 UTC (Sat) by anselm (subscriber, #2796) [Link]

To sue somebody about a GPL violation, one would have to have appropriate standing, i.e., hold copyright in the software package in question. For example, Harald Welte of gpl-violations.org fame gets to go after companies which don't publish source for their Linux-based routers because he has contributed code the Linux kernel, so he is a copyright holder and is entitled to sue.

On the other hand, the FSFE in particular can't really make a big show of »enforcing the GPLv2« even if they wanted to, because that would require them to have released software under the GPL (and software that would be interesting enough for ruthless companies to rip off, at that). However, unlike the original FSF, the FSFE does not appear to actually produce any free software at all – it is mostly a lobbying outfit –, so there isn't anything to enforce.

Open source must be able to deal with patent licenses if necessary

Posted Oct 24, 2010 15:34 UTC (Sun) by nix (subscriber, #2304) [Link] (5 responses)

Fifteen or twenty years passed between the drafting of GPLv1 and the first successful lawsuit brought under it, but it would not have been valid to say, in the interim, that the GPL was unenforceable and meaningless rubbish because nobody had enforced it.

A lack of data (-> a lack of cases) is not the same as negative data (-> lost cases).

Open source must be able to deal with patent licenses if necessary

Posted Oct 24, 2010 15:40 UTC (Sun) by FlorianMueller (guest, #32048) [Link] (2 responses)

On such a central issue it is. Everyone knows how much the FSF cares about patents. Also, you can't compare the resources available to the FSF (including its satellites such as SFLC) these days to the ones in the 1990s.

Open source must be able to deal with patent licenses if necessary

Posted Oct 24, 2010 15:54 UTC (Sun) by nix (subscriber, #2304) [Link] (1 responses)

But... the FSF cared about copyright, too, and had enough resources for quiet negotiation with companies to continue throughout the 90s, in preference to a court case, because they would rather have a not-violated GPL than some test case to make Florian happier. So your argument falls at once.

Open source must be able to deal with patent licenses if necessary

Posted Oct 24, 2010 15:55 UTC (Sun) by FlorianMueller (guest, #32048) [Link]

What's the point you were trying to make? That they may still be, four years later, in quiet negotiations with Novell?

Open source must be able to deal with patent licenses if necessary

Posted Oct 25, 2010 11:02 UTC (Mon) by vonbrand (subscriber, #4458) [Link] (1 responses)

AFAIU, there is no "lack of cases"; there are plenty of those, they just didn't make it to court (or into the headlines) as they were resolved (in GPL's favor) silently. That in itself is very powerfull evidence for GPL, even more so than a few highly publicized court wins.

Open source must be able to deal with patent licenses if necessary

Posted Oct 25, 2010 22:38 UTC (Mon) by nix (subscriber, #2304) [Link]

If a legal dispute doesn't make it to court, is it a case at all? I was assuming 'no', but IANAL so ICBW.

Open source must be able to deal with patent licenses if necessary

Posted Oct 19, 2010 12:42 UTC (Tue) by drag (guest, #31333) [Link]

"themselves" as "between themselves" as in pick up the phone and talk to other people and such and work out agreements together.

Open source must be able to deal with patent licenses if necessary

Posted Oct 19, 2010 13:35 UTC (Tue) by Wol (subscriber, #4433) [Link]

Point is, (a) we don't know what the agreements were, and (b) there are patent licences that are compatible with Free Software.

Troll: "That's a nice product you've got there. Don't you think you should licence our patents?"

Free Software Company (FSC): "That's a nice patent portfolio you've got there. Do you really think a nice shark like you should be swimming with the piranhas?"

Negotiate ... negotiate ... negotiate

"This agreement between Troll and FSC hereby grants FSC a royalty-free sublicensable grant to use any and all patents owned by Troll now and in the future. Oh, and by the way, this agreement is subject to an NDA to save Troll's face"

Cheers,
Wol

Open source must be able to deal with patent licenses if necessary

Posted Oct 19, 2010 18:00 UTC (Tue) by SiB (subscriber, #4048) [Link] (2 responses)

There is nothing wrong with classical physics, as long as you use it
where it is applicable. See the evidence that you quoted.

Open source must be able to deal with patent licenses if necessary

Posted Oct 19, 2010 22:48 UTC (Tue) by ballombe (subscriber, #9523) [Link] (1 responses)

Unfortunately, classical physics by itself is unable to define the scope where it is applicable.

Open source must be able to deal with patent licenses if necessary

Posted Oct 21, 2010 19:33 UTC (Thu) by Wol (subscriber, #4433) [Link]

Precisely.

And the reason for this is that classical physics is couched in maths. It is self-consistent, built on a bunch of axioms, and can be shown to be mathematically correct.

Unfortunately one of the KEY assumptions (if not THE key assumption) is the axiom "parallel lines never meet". Which has been empirically proven false - Einstein's 1919 solar eclipse experiment was the event.

Cheers,
Wol

Open source must be able to deal with patent licenses if necessary

Posted Oct 19, 2010 9:35 UTC (Tue) by tzafrir (subscriber, #11501) [Link]

So let's assume the standard OSI1234 requires a specific patent for its implementation. The company GoblinTek owns that patent and is willing to license with their RAND license (1 ZA RAND per instance of the software per year).

With which free software licenses will this work?

Note: renegotiating a separate deal with GoblinTek is not what I'm after. I was told that a RAND license is reasonable and non-discriminating.

Hmm

Posted Oct 19, 2010 9:54 UTC (Tue) by tialaramex (subscriber, #21167) [Link]

When a person has received due payment for abandoning their principles they may imagine the same behaviour in others. For no-one wants to believe themselves a scoundrel but if everyone is doing it then there can be no shame in it.

Open source must be able to deal with patent licenses if necessary

Posted Oct 19, 2010 10:29 UTC (Tue) by Zack (guest, #37335) [Link] (3 responses)

>>GPLv3 is the only exception, and it's an irrelevant license because it's not pragmatic.

And it's not pragmatic because it addresses software patents directly, negating any sort of skullduggery later on, which means it's not conductive to spreading software patents, which means it's not pragmatic.
Your recursive definition of "pragmatic" to mean software-patent friendly is worrying.

>I think it hurts open source - as opposed to helping it -- if some claim that this can't be done. If developers invest a lot of effort into a project, and if there is a patent (or a list of patents) that can't be worked around, then licensing can be a solution.

No it can't. Even the "open-source" term still implies recipients have the four freedoms. Software patents work directly against those. The solution is not to make it proprietary and just *call* it open source (diluting the term even further), which is what you are suggesting as a strategy to placate the powers that be.

>Not that it's preferable over the abolition of such patents -- but abolition isn't realistic and licensing happens all the time.
>a license that not only allows inbound patent licensing but also allows contributors/distributors to later collect patent royalties from downstream users [..]it shows that even in FSFE circles there are people who can be pragmatic if they have to.

So even submarine patents are "pragmatic" too ?

It's almost as if you are practicing some sort of pro-software patent lobbying the "open-source" way. Trying to cut down the cost of expensive suits and dinners by spreading harmful ideas openly in a grassroots fashion. Maybe an idea for a business-method patent ?

Open source must be able to deal with patent licenses if necessary

Posted Oct 19, 2010 10:53 UTC (Tue) by FlorianMueller (guest, #32048) [Link] (2 responses)

And it's not pragmatic because it addresses software patents directly, negating any sort of skullduggery later on, which means it's not conductive to spreading software patents, which means it's not pragmatic.

No, there are two aspects of software patents. There's the question of patents held by a contributor/distributor vs. questions held by third parties. The Apache license 2.0 deals with the former, and that's what GPL should have done all along. GPLv2 doesn't really do that (only implicitly, which creates uncertainty). GPLv3 could have focused on fixing just that shortcoming. Instead, GPLv3 also tried to address third-party patents, which indeed isn't pragmatic because those third-party patent holders aren't bound to GPL terms anyway, so the GPLv3 just creates problems in the real world.

Open source must be able to deal with patent licenses if necessary

Posted Oct 19, 2010 11:21 UTC (Tue) by roc (subscriber, #30627) [Link]

There's value in software licenses that force software developers to stand together in opposition to patents, instead of individually defecting by taking out licenses.

This particularly matters in the standards arena. Many organizations want to produce standards that are implementable in free software. I want the free software community to present a unified position that such standards must not require patent licensing, rather than a position that royalty-based patent licensing is just fine "except to a few extremists". More robust licenses would help maintain that unity.

The problem with "pragmatic licensing" is that even when inbound patent licensing is compatible with some free software licenses, patent licensing requirements destroy freedom all the same. So those "pragmatic" licenses aren't helping if what you care about is freedom.

Not the implicit red herring again

Posted Oct 24, 2010 22:09 UTC (Sun) by man_ls (guest, #15091) [Link]

GPLv2 doesn't really do that (only implicitly, which creates uncertainty).

Really? The GPL v2 says right in the preamble:

Finally, any free program is threatened constantly by software patents. We wish to avoid the danger that redistributors of a free program will individually obtain patent licenses, in effect making the program proprietary. To prevent this, we have made it clear that any patent must be licensed for everyone's free use or not licensed at all.

Later clarified in sections 7 and 8.

Open source must be able to deal with patent licenses if necessary

Posted Oct 19, 2010 10:58 UTC (Tue) by rsidd (subscriber, #2582) [Link] (5 responses)

Indeed, opposing patents is not pragmatic or reasonable. And that is fine.

"The reasonable man adapts himself to the world; the unreasonable one persists in trying to adapt the world to himself. Therefore all progress depends on the unreasonable man." (Bernard Shaw)

"I like to take an extreme viewpoint because then what is achieved in the end is something that is in the correct direction of that extreme." (A scientist of my acquaintance, in recent e-mail to me)

Neither of those quotes had anything to do with software patents, but both apply. We do need to achieve something. If we accept software patents as a necessary evil, we achieve nothing.

Open source must be able to deal with patent licenses if necessary

Posted Oct 19, 2010 12:15 UTC (Tue) by DOT (subscriber, #58786) [Link] (4 responses)

Indeed. I don't like this defeatist stance that Florian Mueller has adopted on patents lately. It doesn't seem like it can lead anywhere.

Open source must be able to deal with patent licenses if necessary

Posted Oct 19, 2010 12:26 UTC (Tue) by FlorianMueller (guest, #32048) [Link] (3 responses)

I didn't adopt it lately; I adopted it four years ago (October 2006) when I said that I wouldn't lobby against software patents anymore because it was a lost cause due to a lack of support from businesses. In an area of economic policy, there's no way to win unless tax-paying people-employing companies show to politicians in a convincing way (not just lip service) that they have a serious problem. I gave an example of that here on LWN.

Open source must be able to deal with patent licenses if necessary

Posted Oct 19, 2010 13:02 UTC (Tue) by ballombe (subscriber, #9523) [Link] (2 responses)

So maybe it would be helpful to know what are you lobbying for now ?

Open source must be able to deal with patent licenses if necessary

Posted Oct 19, 2010 13:05 UTC (Tue) by FlorianMueller (guest, #32048) [Link] (1 responses)

So maybe it would be helpful to know what are you lobbying for now ?

I haven't done any lobbying in more than three years. That last lobbying project was about soccer broadcasting rights; the last IT-related lobbying I did was four years ago.

Without lobbying, one can still have views and ideas and express them. I was asked a similar, more general question here on LWN and answered it.

Open source must be able to deal with patent licenses if necessary

Posted Oct 19, 2010 15:31 UTC (Tue) by MKesper (subscriber, #38539) [Link]

So please stop trolling.

Open source must be able to deal with patent licenses if necessary

Posted Oct 19, 2010 13:47 UTC (Tue) by jthill (subscriber, #56558) [Link] (4 responses)

When discussing the FSFE's letter, the statement

In this context, it's the FSFE itself that presents mostly fiction, not facts,

followed immediately by characterizing a claim, constitutes an assertion that the FSFE's letter actually made that claim, to wit:

open source licenses don't allow inbound patent licensing from third parties

which it didn't.

Perhaps you'd like to take more care that the claims you castigate with such harsh language aren't actually your own?

Open source must be able to deal with patent licenses if necessary

Posted Oct 19, 2010 13:53 UTC (Tue) by FlorianMueller (guest, #32048) [Link] (3 responses)

Frankly, I'm puzzled how you can fail to see why I said what I said.

Under the subhead "(F)RAND incompatible with most Free Software licenses", the FSFE lists five major FOSS licenses and then says: "All of which, with the only arguable but uncertain exception of the ultrapermissive category, are clearly incompatible with a patent royalty bearing regime. According to the statistics released by Black Duck Software, more than 85% of Free Software projects are distributed under licenses that are incompatible with patent royalty-bearing regimes."

So my language about "inbound patent licensing from third parties" summed this up from the angle that matters for the EU debate.

One could only defend the FSFE's claim by taking it out of the EIF context and saying that "yes, you aren't allowed to charge other people patent royalties under certain licenses". Then the FSFE's claim would -- out of context -- be defensible, but then it wouldn't make sense. So the question is whether they lied or grossly misled.

Open source must be able to deal with patent licenses if necessary

Posted Oct 19, 2010 15:04 UTC (Tue) by jthill (subscriber, #56558) [Link] (2 responses)

The claims, as you worded them, are false. The claims, as the FSFE words them, are true.

Frankly, I'm puzzled how you can fail to see the sense in my objection.

Then the FSFE's claim would -- out of context -- be defensible, but then it wouldn't make sense

Perhaps, when someone makes a claim that makes no sense to you, you'd consider objecting that the claim makes no sense to you?

Open source must be able to deal with patent licenses if necessary

Posted Oct 19, 2010 15:07 UTC (Tue) by FlorianMueller (guest, #32048) [Link] (1 responses)

What's wrong with seeing the claim in the context in which it stands? The only way to interpret texts is in context, not out of context.

Open source must be able to deal with patent licenses if necessary

Posted Oct 20, 2010 4:18 UTC (Wed) by jthill (subscriber, #56558) [Link]

"The claim" is what they actually said. "The context" is the actual argument it supports, contained in their actual letter.

You say that argument doesn't "make sense" to you, and that's quite apparent.

Thanks, Jon

Posted Oct 28, 2010 21:06 UTC (Thu) by stevem (subscriber, #1512) [Link] (2 responses)

The comment filtering is a *wonderful* feature.

Thanks, Jake

Posted Oct 28, 2010 21:19 UTC (Thu) by corbet (editor, #1) [Link] (1 responses)

Filtering is Jake's work, actually...I'll pass your thanks on to him :)

Thanks, Jake

Posted Oct 29, 2010 9:25 UTC (Fri) by spaetz (guest, #32870) [Link]

Another happy customer of comment filtering here. Thanks :). It would even be more satisfying if I saw the number of filtered comments next to the individuals at http://lwn.net/MyAccount/spaetz/commfilters/