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Eben Moglen om patenter/W3C



Fra slashdot:
http://interviews.slashdot.org/article.pl?sid=03/02/20/1544245
//Erik

9) FSF's W3C patent policy position
by The Pim

I sent the following to sslug@sslug on January 1, and have not received
a reply. Since it is a legal question, perhaps Professor Moglen would
answer it here. Some context:

    * Act Now To Sidestep A W3C Patent Pitfall [slashdot.org]
    * Please Help Pass W3C Patent Policy [debian.org] 

I'm writing because I cannot understand some parts of the "FSF's
Position on Proposed W3 Consortium 'Royalty-Free' Patent Policy", at
http://www.gnu.org/philosophy/w3c-patent.html .

First, it is quite clear that you believe that software exercising
patents with "field-of-use" licenses cannot be distributed under the
GPL. However, it is not clear whether you believe that such software
could be distributed as free software at all. Paragraph two seems to say
that it could not, but it also appears to conflate GPLed software with
free software, so I am not sure this is what the author meant. Paragraph
three equivocates by saying "licensing under other free software
licenses does not imply free", without saying "licensing under other
free software licenses implies not free".

The impact of the proposed policy on the free software community
obviously depends greatly on whether it could prevent us from
implementing some standards at all, or only under the GPL. Which is it?
(Since most of the document focuses on the GPL, I assume it is the
latter. But it should be stated explicitly, and the hints to the
contrary should be cleaned up.)

Second, who exactly would be prevented from distributing software
exercising such patents under the GPL? Those in jurisdictions in which
the patent applies, or everyone?

Third, why exactly are "field-of-use" patents incompatible with the GPL?
The addendum intended to clarify this matter does not succeed. Step 4 in
its example says,

    C's patent license prohibits folks from taking his URL parsing code
and putting it into, say, a search engine. 

But C's patent equally prohibits folks from taking a (hypothetical)
GPLed search engine and adding URL parsing code. So by that argument,
nobody can distribute a GPLed search engine, either. What really is the
criterion that prevents distribution under the GPL? Is it that the
author "knows" that others will be "tempted" to modify the software such
that it no longer meets the "field-of-use" restriction? Is it that the
author has accepted the patent license himself?

And how does this differ from the situation of distributing GPLed
software that cannot be used in some jurisdictions? If I distribute
cryptographic software under the GPL, it will end up in the hands of
people in repressive countries who are not allowed to use (never mind
redistribute) it. This would seem to imply that such software cannot be
distributed under the GPL.

I hope you can answer these questions and update the text on your web
site.


Eben:

The question as asked is quite complex. Let me try to simplify it
somewhat. Free software should be freely modifiable and redistributable
by its users. Of course, any code once modified may practice claims of a
patent about which the modifying user is uninformed. So anyone
distributing free software is unable to assure his users that each and
every modification they may want to make is noninfringing. But when
someone distributes apparently-free software under actual but
undisclosed legal restrictions preventing modification or
redistribution, the software is not really free. GPL tries to deal with
this problem through section 7, which says that if code you are
distributing is actually under restriction that is incompatible with the
terms of the GPL, you can't distribute under GPL at all. So if you have
accepted a patent license that prohibits you from reusing some of your
code, or code you have received from others, in different contexts, GPL
section 7 means that you cannot distribute under GPL, and if the code
you received was under GPL, your acceptance of the patent license
precludes redistribution altogether. The goal is to ensure that, so far
as each redistributor's actual knowledge is concerned, each item of
GPL'd software distributed is fairly labeled: it can be freely copied,
modified and redistributed.



 
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