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

Posted Oct 19, 2010 12:41 UTC (Tue) by FlorianMueller (guest, #32048)
In reply to: Open source must be able to deal with patent licenses if necessary by drag
Parent article: Open Standards in Europe: FSFE responds to BSA letter

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.