Copyleft/guide Changeset - 1f6399f54ece

Changeset - 1f6399f54ece

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Bradley Kuhn (bkuhn) - 9 years ago 2015-02-02 15:35:34
bkuhn@ebb.org

Rework & expand discussion: express patent license

Upon consultation with Richard Fontana, we drafted together this rewrite
of the original paragraph discussing this issue.

The original paragraph was tersely written and indeed accurate.
However, it was likely comprehensible only to those already familiar
with patent licensing regimes and systems. As such, it fit poorly in
the tutorial, which is designed for all policy makers who care about
copyleft, who may in fact be new to patent policy and licensing.

Please note: Richard Fontana <fontana@sharpeleven.org> dictated to me
some of this text, and therefore he is likely a copyright and
"creator" (per CC-BY-SA 4.0) of some of this text. In fact, since we
wrote it collaboratively, I suspect Fontana and I are co-copyright
holders and co-creators of this commit.

2 files changed with 21 insertions and 8 deletions:

comprehensive-gpl-guide.tex

gpl-lgpl.tex

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comprehensive-gpl-guide.tex

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@@ ... / @@ -98,13 +98,14 @@ and Guide @@
 }}
 \vfill
 {\parindent 0in
 \begin{tabbing}
 Copyright \= \copyright{} 2003--2005, 2008, 2014 \hspace{1.mm} \=  \kill
 Copyright \> \copyright{} 2003--2005, 2008, 2014 \>  Bradley M. Kuhn. \\
 Copyright \> \copyright{} 2003--2005, 2008, 2014--2015 \>  Bradley M. Kuhn. \\
 Copyright \= \copyright{} 2015 \> Richard E. Fontana. \\
 Copyright \> \copyright{} 2014 \>  Anthony K. Sebro, Jr. \\
 Copyright \= \copyright{} 2014 \> Denver Gingerich. \\
 Copyright \= \copyright{} 2003--2007, 2014 \>  Free Software Foundation, Inc. \\
 Copyright \> \copyright{} 2008, 2014 \>  Software Freedom Law Center. \\
 \end{tabbing}

gpl-lgpl.tex

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@@ ... @@
 The term ``patent license,'' as used in GPLv3~\S11\P4--6, is not meant to be
 confined to agreements formally identified or classified as patent licenses.
 GPLv3~\S11\P3  makes this clear by defining ``patent
 license,'' for purposes of the subsequent three paragraphs, as ``any express
 agreement or commitment, however denominated, not to enforce a patent
 (such as an express permission to practice a patent or covenant not to
 sue for patent infringement)''
 The definition does not include patent licenses that arise by
 implication or operation of law, because the third through fifth paragraphs
 of section 11 are specifically concerned with explicit promises that purport
 to be legally enforceable. The final paragraph of section 11 explicitly
 sue for patent infringement)''.
 ``Express'', as used GPLv3~\S11\P3, is a term often used in legal writing as
 an antonym to ``implied''.  Thus, GPLv3's definition of ``patent license''
 does not include those patent licenses which arise by
 implication or operation of law\footnote{FIXME: explain this}.
 Instead, GPLv3~\S11\P3--5 are specifically concerned with explicit promises
 that are purportedly legally enforceable.
 Nevertheless, unlike traditional commercial patent licensing
 agreements\footnote{FIXME: note such a clause is rare, if not unique.},
 rather than confining the patent license grant to some narrow set of such
 express situations, GPLv3 preserves the
 \hyperref[gpl-implied-patent-grant]{existing implied patent licensing structure}
 found in GPLv2.  Specifically, the final paragraph of GPLv3~\S11 explicitly
 preserves the availability of patent licenses arising by implication or
 operation of law.
 operation of law.  GPLv3~\S11's final paragraph dissuades potential
 misinterpretation disparity between GPLv2 and GPLv3 --- namely, that some
 might argue an explicit patent license would otherwise cause any implied
 patent license to evaporate.
 GPLv3~\S11\P5 is commonly called GPLv3's downstream shielding provision.  It
 responds particularly to the problem of exclusive deals between patent
 holders and distributors, which threaten to distort the free software
 distribution system in a manner adverse to developers and users.  The
 fundamental idea is to make a trade-off between assuring a patent license for

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