Software Patents and Copyleft
Posted 17 Apr 2002 at 16:54 UTC by sej
What would you think of a company that grants no-cost licenses for its
software patents to any copylefted free software, but not X11/MIT/BSD
licensed software? Conversely, what would you think of a company
that patents inventions embodied in their copylefted software, and
dual-licenses the patent (at some cost) to proprietary software
I don't have a thesis to present here. I'm using this article to get an
idea of what others think in the free software community. Copyrights
and patents are two forms of intellectual property (I distinguished
them, so can I use the umbrella term please?). With Copyleft, the
copyright law was cleverly used to protect source code availability.
Advocates of this approach are comfortable with using copyright to this
end, and comfortable with dual-licensing strategies upon which
hybrid proprietary/free software businesses are built (maybe
"comfortable" should be replaced with "willing to
Is there a similar territory of "compromise" or "comfort" available for
software patents? One could argue that all software patents are a bad
idea, and you should avoid trafficking in them. But many people
have found at least one use of software copyright they wholeheartedly
support, could there not be clever uses of software patents that receive
the same support?
As a programmer of non-copylefted free software I've long had to accept
that others were using copyright law to exclude me from incorporating
their freely available work into my own. I would have the same concern
with copylefted patents (with or without dual-licensing), and would
prefer a no-cost license granted to all variants of free software. But
I can understand that people use copyrights and patents to keep others
from having access to information without agreeing to certain terms, and
adherence to copyleft might be what it takes to get certain corporations
to liberalize their software patents.
I know Bruce Perens was working on a free software patent pool a while
back, and even considered starting a venture to run the pool for a
profit. What became of that? What other synergies are ongoing between
free software and
software patents? What does RMS think? What do you think?
Patent copyleft, posted 17 Apr 2002 at 17:10 UTC by sab39 »
This seems like such an obvious idea that I don't quite understand why
nobody's tried it. It's only tangentially related to the article, I'm
afraid, although it is related to "Patents and copyleft".
The GPL says "if you use this copyrighted code in a product, you must
release all the copyrighted code in said product under these terms or
Why couldn't a patent be licensed under terms that say "if you use this
patented technique in a product, you must ensure that all other patents
covering said product are licensed under these terms or looser" (with
"looser" of course including universal royalty-free licensing)? If you
don't have the right to license those patents, you can't use this patent
- just like if you don't have the right to license some copyrighted
code, you can't combine it with GPLed code. By obtaining individual
patents and releasing them under such terms, the patent system could be
gradually co-opted in the same way the GPL is co-opting the copyright
system - even more so in fact, because it could become impossible to do
certain necessary tasks without using a patent licensed in this way
(think LZW or RSA).
I don't see the patent system being reformed meaningfully through
politics any time soon. Co-opting it just like the GPL co-opts
copyrights would be a real step that could be started *today*.
raph?, posted 17 Apr 2002 at 17:18 UTC by yakk »
Re: raph?, posted 17 Apr 2002 at 17:26 UTC by sej »
, thanks for pointing that out.
, I'm just curious, did you ever consider extending
your grant to
include the LGPL? Why or why not?
Commons, posted 17 Apr 2002 at 21:17 UTC by ftobin »
The point of such a strategy is to encourage a commons, as described in
Lawrence Lessig's book, "The Future of Ideas". The GPL, and to a lesser
extent, the LGPL, have similar effects: they require that if you partake
of the goods available to all, then you must contribute back.
A patent with terms that you describe has a similar effect; if you wish
to use the patent, then you must be doing work that helps this commons.
If you use a BSD or similar license, however, then you are helping both
working in the commons, and indirectly those out of it, and the patent
holders probably don't feel like benefiting those taking from the commons.
Of course, there is also the obvious feeling that the (L)GPL and
similarly the said patent conditions can feed, "I'm not profitting from
doing this, so you can't either."
I'm all for it, posted 17 Apr 2002 at 21:27 UTC by walken »
I think software patents are a bad idea; however I dont see any 'ethics'
problems for a free software programmer or company to use the patent
system to protect their interests. Just as proprietary software
companies use patents, it's only fair game that free software companies
should be able to use patents against proprietary software companies,
using a selective licensing scheme as you described.
The reason I dont see it taking off though, is that patents are pretty
expensive to obtain. For copyright protection the GPL works pretty nice
because it's so easy to put something under the GPL - but, for patent
protection the system is much more complex and expensive and I cant see
myself doing this in my free time. Raph, what's your experience with
As you know, software patents are bad and hurt the innovation in
For the moment, we are trying to have a list of patent owners allowing
royalty free license for Free Software :
We have trying to keep the list up to date to show that software patents
are a real issue for Free Software and innovation in general. (as an
argument for EU to NOT make a directive around software patents)
I agree that software patents are bad when they apply to ideas or
expressions of an idea, or to math, or to something obvious to a
skilled practitioner in the field. But perhaps some software patents
are as worthwhile as patents granted before the 1980's, when the Reagan
administration switched the patent office over to funding itself from
application fees. Prior to that there had been a knee-jerk restriction
against all software patents. After that the floodgates were opened
It is the somewhat defensible software patents I'm interested in. The
ones that embody a surprising and non-trivial invention.
adulau, will you make a distinction between no-cost
licenses that are granted
for all free software versus just copylefted free software?
Re: Re: raph?, posted 18 Apr 2002 at 01:34 UTC by jamesh »
sej: I think Raph doesn't include LGPL in his patent
license, as it would allow a proprietary software company from writing a
small LGPL library implementing the patented code, then linking that
into the proprietary app. The MIT/X license has the same problem.
The idea being that people wanting to use the patents in proprietary
apps would need a separate license for the patents. This is equivalent
to companies licensing their GPL'd code under other terms to people
willing to pay.
WRT using patented code in non-free software, you could license the
patent for use in all free software (including non-copyleft) but state
that the patent itself can't be used if the non-copyleft code gets
linked to non-free software. Obviously raph's patents are his to do with
as he sees fit, but making the restriction part of the patent license
seems preferable to only allowing copyright licenses that enforce the
same condition separately.
I'm genuinely curious as to what people think about my proposal in the
first comment to this article (which turns out not to be as off-topic as
I thought - I misinterpreted the article as being just to do with
patents and copyright licenses, not patent licensing in general). Is
there some fundamental flaw in this?
It seems a lot simpler than setting
up explicit patent pools and licensing to GPL-software only and things
like that; it doesn't mingle patents with copyrights (thus perhaps
giving some leverage with people who might be opposed to "free software"
or "open source" but might be okay with "open patents" where you just
license your patents freely, not your proprietary source code) and it
self-organizes into a big global patent pool, much like there's a global
"copyright pool" of GPL software today.
Am I missing something, or could it really work?
Re: Patent copyleft, posted 18 Apr 2002 at 16:31 UTC by sej »
, your idea is interesting, but your paraphrasing
of the GPL isn't accurate. It doesn't say you have to release
derivative works under equal terms or looser. It says you have to
release derivative works under the GPL, period.
But for patents maybe you can find a legalistic definition of "looser"
that will hold up. Or maybe someone can write a dead-end copyleft-like
license that creates a permanently fenced-off area of collaborative
patents. And I'd guess to be a success that "someone", whether an
individual or organization, would have to have "seed patents" of
comparative value to the potential community as emacs, gcc, and gdb were
to the free software community.
Patent copyleft, posted 18 Apr 2002 at 20:56 UTC by sab39 »
You're right that the GPL says that you must release derived works under
the GPL, period, and that that makes my analogy a little less accurate,
perhaps. However, the GPL does allow some scenarios that are
analagous to my patent license.
Consider the situation where I want to release a work based on a GPL'd
library A, and an X11 licensed library B. My work will involve making
fixes to A and B, and writing some application code C which calls the
The GPL requires that I release "the work as a whole" under the GPL
specifically. But the GPL doesn't preclude me also releasing the
fixes to B under the X11 license, which is looser than the GPL. This is
because my fixes to B are not derived works of A, but simply included in
a work which is "as a whole" a derived work of A.
Whether a "looser" license is permissible for the application code C is
a slightly grey area and I'm not sure I understand all the implications
(or that those implications are legally well-defined yet). The
application code C is only a derived work of A if you consider work that
uses an API to be a derived work of that API, which legal precedent
doesn't, as far as I can tell (are all Windows applications derived
works of Windows, and hence © Microsoft?). So the application code
itself can be licensed under whatever terms you like.
However, a binary of C, linked to A, is definitely a derived work
of A. This, then, must be distributed under the GPL. But the GPL only
requires that the source code be released under the GPL, and
doesn't preclude releasing it under other terms as well.
So it is at least arguable that I can distribute the code to C under the
terms of the X11 license, with the understanding that if you link C to A
and produce a binary, you're bound by the GPL. But you could still
remove all references to A in C (perhaps rewriting it to use a non-GPL'd
library to get the same functionality) and distribute the result under a
pure X11 license, untainted by the GPL.
The definition of "or looser" that I'd choose would be analagous to the
way that the GPL deals with unrelated works that end up part of the same
derived work as some GPL software. I'd define it something like this:
A patent is licensed freely enough to be acceptable under this license
if and only if it may be used without royalties or other consideration
in ANY product that is covered only by patents licensed under this
license or other acceptable licenses.
That would mean that you could have:
The patent-GPL: the patent can only be used in products in which all the
patents are acceptable (as defined above)
The patent-LGPL: the patent can only be used if all patents on the same
part of the product are acceptable
The patent-BSD: the patent can be used royalty-free in any product but
its use must be acknowleged
The patent-X11: the patent can be used royalty-free in any product
All of these are "acceptable" and thus compatible with the patent-GPL,
except possibly the patent-BSD, which would depend on how the
acknowledgement requirement was implemented - just like in the world of
copyright licenses today.
Sleepycat?, posted 19 Apr 2002 at 17:21 UTC by Cantanker »
Sleepycat develop and distribute the Berkeley DB product under a dual license.
What jamesh said, posted 24 Apr 2002 at 23:55 UTC by raph »
My patent grant extends only to the GPL for exactly the reasons that
jamesh describes - otherwise, it is too tempting for a
commercial user to create an LGPL'ed libraphspatents.so (or, more
likely, RAPHSPAT.DLL), and link to their otherwise proprietary code.
I'm perfectly willing to consider other alternatives, but frankly the
issue hasn't come up in a serious way yet. My patents tend to cover
highly technical implementation details, rather than generic features.
In particular, it is quite unlikely that anyone will find the need to
either license or get around one of my patents for the purpose of
interoperability. Thus, it is entirely plausible that the GPL-only grant
is a good fit for my patents, but not necessarily others that may be
worth granting to the free community.