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Patent licence

Patent licence

Posted Sep 20, 2012 16:53 UTC (Thu) by boog (subscriber, #30882)
Parent article: Twin Peaks v. Red Hat

Assuming Twin Peaks' software practises their own patents, couldn't Red Hat just buy copies of all of Twin Peaks' products then benefit from the implicit patent licence of GPL2? That would also be something worth testing in court.

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Patent licence

Posted Sep 20, 2012 17:08 UTC (Thu) by k3ninho (subscriber, #50375) [Link]

Up to the point where the court agrees that Twin Peaks infringed Red Hat's copyrights and so Twin Peaks lose their GPLv2 licence to the offending products. That then means Twin Peaks can't grant the (implicit) patent licence in the GPLv2 text to Red-Hat-the-customer and so Red Hat is infringing the patents. Mutually Assured Destruction.


Patent licence

Posted Sep 20, 2012 18:11 UTC (Thu) by boog (subscriber, #30882) [Link]

Too clever?

I'm assuming they would buy their copy before the judgement. In any case, it would be an additional insurance policy.

Patent licence

Posted Sep 20, 2012 18:16 UTC (Thu) by gidoca (subscriber, #62438) [Link]

IANAL, so maybe it's just lawspeak confusing me, but section 4 says that infringement "will automatically terminate your rights under this License". It doesn't say that it frees you from your obligations. Red Hat could therefore argue that by using the software, Twin Peaks agreed to the GPL and therefore to the patent license, despite the fact that they may not actually use the GPL-covered software any more.

Keep in mind the different programs involved

Posted Sep 22, 2012 10:36 UTC (Sat) by Max.Hyre (guest, #1054) [Link]

The comments above give the impression (at least to me) that folks are thinking of Twin Peaks' offerings as a monolith. In fact, RH is suing over the mount program. mount being in violation of the GPL says nothing about the rest of their suite (FUD to the contrary notwithstanding). (Of course, if you're selling a filesystem, not having mount could put a crimp in your operations. :-)

Thus, unless mount uses the patent in question, buying a copy would afford no protection. Even if it did, the implicit license for mount wouldn't extend to any other random use of that patent.

Keep in mind the different programs involved

Posted Sep 24, 2012 9:15 UTC (Mon) by gidoca (subscriber, #62438) [Link]

You are right, I didn't think that far. My main point, though, was that IMHO shipping GPL software in violation to the licence doesn't free you from the GPL's obligations, since that doesn't terminate the agreement.

As to the discussion below whether you have to explicitly agree to a contract, at least in Swiss law (which is the only one I have the faintest knowledge about) there are three ways to enter a contract:
- written, by signature
- orally
- by taking an action that implies your intention to enter the contract (this is called "stillschweigend", which literally means tacitly, in German)

Patent licence

Posted Sep 20, 2012 21:44 UTC (Thu) by iabervon (subscriber, #722) [Link]

AFAICT, Twin Peaks has not offered their software under the GPL, nor accepted the GPL as a license for any software. So the terms of the GPL are pretty much irrelevant, except in so far as we can tell that they don't have that license to Red Hat's software.

If you put a $1M price tag on the television in your living room, and someone breaks in and steals it, you can't go to court and say they bought your TV for $1M but now refuse to pay you. Even if you provide a standing offer to make their actions legal, they don't have to accept it.

Patent licence

Posted Sep 20, 2012 23:22 UTC (Thu) by boog (subscriber, #30882) [Link]

5. You are not required to accept this License, since you have not signed it. However, nothing else grants you permission to modify or distribute the Program or its derivative works. These actions are prohibited by law if you do not accept this License. Therefore, by modifying or distributing the Program (or any work based on the Program), you indicate your acceptance of this License to do so, and all its terms and conditions for copying, distributing or modifying the Program or works based on it.

Patent licence

Posted Sep 20, 2012 23:50 UTC (Thu) by iabervon (subscriber, #722) [Link]

It doesn't matter at all what the GPL says, if you don't accept it. As it turns out, those actions are prohibited by law (because that's what the law says, not because of anything in the license text), but companies sometimes do things that are prohibited by law. And it's the law, not any unaccepted license, which dictates what happens in that case. And the law is about injunctions and damages, not getting a license accepted. Of course, in non-malicious cases, the company would generally end up accepting the offered license because it enables them to do business and is a good deal. But they could simply refuse, and have the court prevent them from continuing to infringe and award damages to the copyright holders for the earlier infringement. In that case, the GPL terms would have no effect at all; in particular, Red Hat wouldn't get a patent license.

Patent licence

Posted Sep 21, 2012 0:10 UTC (Fri) by boog (subscriber, #30882) [Link]

I'm not convinced.

Seems to me that it's rather like "click through" (which is hard to wriggle out of). By distributing they have accepted the licence and through that licence they (implicitly) license their patents to recipents of the distributed GPL programs that practise them. A court will decide this for us one day...

Patent licence

Posted Sep 21, 2012 0:42 UTC (Fri) by dlang (subscriber, #313) [Link]

if something is covered by multiple licenses then the statement "nothing else grants you permission to modify or distribute the Program or its derivative works" is invalid.

As such, it's very possible for a source tree to have a copy of the GPl that includes such language, but where the person using that source tree does not have to follow the GPL because they have some other license.

This is why the GPL is not 'viral' in the sense that the FUD being spread around implies. Putting a GPL file into your proprietary code does not automatically make your entire codebase GPL, it just means that you have no valid way to distribute that codebase. When you get called on it by a GPL license holder, you have three choices.

1. continue to distribute the codebase, but comply with the GPL

2. negotiate some other license to distribute the codebase.

3. remove the GPL code from your codebase

granting an additional license actually happens quite frequently in the FOSS world. Not in cases where someone has started legal action against a GPL infringer, but it's very common to see someone ask if a particular piece of code can be dual licensed (frequently under BSD) so that some other project with a non-GPL license can make use of it. If the function is fairly small, the reaction is commonly "sure"

If you take option #3, the version you are distributing now is still infringing, and the license holder can still get an injunction and go after you for damages for the version you are distributing, but if you release a new version without the GPL code (and without anything "derived" from that code, which is a slippery definition), then the GPL license holder has no claim against your new version.

In this case, since Twin Peaks was sloppy enough to use one piece of GPL code like this, the odds are really good that they have used more. Every copyright holder of such code can now go after Twin Peaks, and they can each do so individually.

Doing so is a nuclear option that could scare a lot of people away from FOSS code. The incident with Cisco that Rob Landley has been so upset about is a mild example of this. If you were to have 500 individuals sue one company for copyright infringement for the Linux kernel as separate lawsuits (nothing says they need to band together and jointly hire a lawyer), the mere cost of lawyers to handle so many separate cases would be devastating.

But if companies want to go nuclear against FOSS on patents because they don't think FOSS can defend themselves, they need to be prepared to have FOSS fight back with the tools that are available, namely copyrights.

Patent licence

Posted Sep 21, 2012 0:46 UTC (Fri) by iabervon (subscriber, #722) [Link]

It's easy to wriggle out of a click-through license. You just have to agree that you were breaking the law by using the software without a license, pay thousands of dollars (or more) in damages, and stop using the software when the court requires you to. You probably wouldn't want to do that, but you could.

Patent licence

Posted Sep 24, 2012 6:35 UTC (Mon) by branden (guest, #7029) [Link]

I'm not convinced.

Here you go. Start reading.

Patent licence

Posted Sep 20, 2012 22:24 UTC (Thu) by jhhaller (subscriber, #56103) [Link]

I (anonymously) posted a reply on Groklaw with similar content as I'm stating here.

The mount command is a standalone piece of software. It's unlikely that Twin Peaks' patent is practiced in the mount command, but in some kernel module. Hence, providing the mount command and their patented software is mere aggregation, and wouldn't provide a GPL license to the rest of the software even without some of the other arguments posted by others. Twin Peaks could also likely write their own mount command which does not infringe on Red Hat's copyright, which would eliminate the infringement, and make an injunction moot. Then, one gets into what the maximum statutory damages would be for distributing mount. It's unlikely to be per per item, but for the work being infringed. Twin Peaks would have to spend some effort to rewrite the mount command, but that would cost less than the amount of damages they expect to collect. Alternatively, Twin Peaks' sales might be poor enough that they could stop selling their product without a significant change in revenue, as SCO did. Finally, if Twin Peaks downloads another copy of util-linux and releases their mount sources with future distribution of their product, US courts have never weighed in on if that is a new license, stopping the infringement.

The more interesting question is whether there are any GPL-only interfaces used by Twin Peaks's filesystem code, whether wrapped or not. Since Twin Peaks doesn't release this code, it's harder to determine this. Plus, one then gets into who holds the copyright on that code, and if it's not Red Hat, they can't use it in their counter claims. I'm betting that someone would be willing to transfer their copyright to Red Hat in that case. This would make it infinitely more difficult for Twin Peaks to avoid an injunction, and make a settlement more likely. SFLC is on this aspect of the case, and hopefully others.

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