Re: GPLv3 comedy unfolding -- "Patents"

[Alexander Terekhov]

Patents

Software patenting is a harmful and unjust policy, and should be 
abolished; recent experience makes this all the more evident. Since 
many countries grant patents that can apply to and prohibit software 
packages, in various guises and to varying degrees, we seek to protect 
the users of GPL-covered programs from those patents, while at the 
same time making it feasible for patent holders to contribute to and 
distribute GPL-covered programs as long as they do not attack the 
users of those programs. Therefore, we have designed GPLv3 to reduce 
the patent risks that distort and threaten the activities of users who 
make, run, modify and share free software. At the same time, we have 
given due consideration to practical goals such as certainty and 
administrability for patent holders that participate in distribution 
and development of GPL-covered software. Our policy requires each such 
patent holder to provide appropriate levels of patent assurance to 
users, according to the nature of the patent holder’s relationship to 
the program.

Draft 3 features several significant changes concerning patents. We 
have made improvements to earlier wording, clarified when patent 
assertion becomes a prohibited restriction on GPL rights, and replaced 
a distribution-triggered non-assertion covenant with a contribution-
based patent license grant. We have also added provisions to block 
collusion by patent holders with software distributors that would 
extend patent licenses in a discriminatory way.

Draft 3 introduces the terms “contributor” and “contribution,” which 
are used in the third paragraph of section 10 and the first paragraph 
of section 11, discussed successively in the following two subsections. 
Section 0 defines a contributor as “a party who licenses under this 
License a work on which the Program is based.” That work is the 
“contribution” of that contributor. In other words, each received 
GPLv3-covered work is associated with one or more contributors, making 
up the finite set of upstream GPLv3 licensors for that work. Viewed 
from the perspective of a recipient of the Program, contributors include 
all the copyright holders for the Program, other than copyright holders 
of material originally licensed under non-GPL terms and later 
incorporated into a GPL-covered work. The contributors are therefore the 
initial GPLv3 licensors of the Program and all subsequent upstream 
licensors who convey, under the terms of section 5, modified works on 
which the Program is based.

For a contributor whose contribution is a modified work conveyed under
section 5, the contribution is “the entire work, as a whole” which the
contributor is required to license under GPLv3. The contribution 
therefore includes not just the material added or altered by the 
contributor, but also the pre-existing material the contributor copied 
from the upstream version and retained in the modified version. Our 
usage of “contributor” and “contribution” should not be confused with 
the various other ways in which those terms are used in certain other 
free software licenses.

[snip Eben's impenetrable pseudo-techno-poetry regarding litigation]

Our previous drafts featured a patent license grant triggered by all 
acts of distribution of GPLv3-covered works.11 Many patent-holding 
companies objected to this policy. They have made two objections: (1) the 
far-reaching impact of the patent license grant on the patent holder is 
disproportionate to the act of merely distributing code without 
modification or transformation, and (2) it is unreasonable to expect an 
owner of vast patent assets to exercise requisite diligence in reviewing 
all the GPL-covered software that it provides to others. Some expressed 
particular concern about the consequences of “inadvertent” distribution.

The argument that the impact of the patent license grant would be
“disproportionate,” that is to say unfair, is not valid. Since software 
patents are weapons that no one should have, and using them for aggression 
against free software developers is an egregious act, preventing that act 
cannot be unfair.

However, the second argument seems valid in a practical sense. A typical
GNU/Linux distribution includes thousands of programs. It would be quite
difficult for a redistributor with a large patent portfolio to review all 
those programs against that portfolio every time it receives and passes 
on a new version of the distribution. Moreover, this question raises a 
strategic issue. If the GPLv3 patent license requirements convince patent-
holding companies to remain outside the distribution path of all GPL-
covered software, then these requirements, no matter how strong, will 
cover few patents.

We concluded it would be more effective to make a partial concession
which would lead these companies to feel secure in doing the distribution
themselves, so that the conditions of section 10 would apply to assertion
of their patents. We therefore made the stricter section 11 patent license
apply only to those distributors that have modified the program. The other
changes we have made in sections 10 and 11 provide strengthened defenses
against patent assertion and compensate partly for this concession.

We have rejected a suggestion by companies that the patent license grant
should only cover patent claims that read on the “changes” and “additions”
that the contributor has made to a work, perhaps also extending, in some
ill-defined way, to patent claims that are infringed specifically as a 
result of the combination of those modifications with the rest of the work.
Such a narrow rule is unacceptable because it would do too little. Given
the manner in which software patent claims are drafted, we fear that few
patent claims would fit that criterion and be licensed. Even substantial
modifications to a work are typically fragmentary from a patent 
infringement perspective. They are not in themselves likely to read on a 
patent claim drawn to cover a broader or complete system or method. 
Moreover, in cases where a patent claim held by a distributor relates 
closely to the modification it has made to a work, it will often be the 
case that the modification itself does not “cause” the entire modified 
work to read on the claim, such as when the claim is broad enough to cover 
the original work in the form in which it was received by the distributor.

Therefore, in Draft 3, the first paragraph of section 11 states that a 
contributor’s patent license covers all the essential patent claims 
implemented by the whole program as that contributor distributes it. 
Contributors of modified works grant a patent license to claims that 
read on “the entire work, as a whole.” This is the work that the copyleft 
clause in section 5 requires the contributor to license under GPLv3; it 
includes the material the contributor has copied from the upstream version 
that the contributor has modified. The first paragraph of section 11 does 
not apply to those that redistribute the program without change.

We hope that this decision will result in fairly frequent licensing of 
patent claims by contributors. A contributor is charged with awareness of 
the fact that it has modified a work and provided it to others; no act of 
contribution should be treated as inadvertent. Our rule also requires no 
more work, for a contributor, than the weaker rule proposed by the patent 
holders. Under their rule, the contributor must always compare the entire 
work against its patent portfolio to determine whether the combination of 
the modifications with the remainder of the work cause it to read on any 
of the contributor’s patent claims.

[... more Eben's impenetrable pseudo-techno-poetry regarding patents ...]
------


regards,
alexander.

--
"FORM 990, PART II, LINE 25 - OFFICER COMPENSATION SCHEDULE
 ===========================================================
                                         PROGRAM  MANAGMENT
 OFFICER NAME AND TYPE OF COMPENSATION  SERVICES  AND GENERAL

 EBEN MOGLEN
    COMPENSATION:                        116,875.     38,959."

                          -- SOFTWARE FREEDOM LAW CENTER, INC.