crdic at yahoo.com
Thu Oct 18 11:27:46 PDT 2001
Gian-Carlo Pascutto wrote:
> Thats not what I meant. If they publish their
> stuff under GPL, they void their patents, as
> far as I understand the relevant sections of it.
Not exactly. The patent isn't "voided", but there would be a conflict
between the patent and the GPL unless the patent holder was committed to
a policy of issuing royalty-licenses to anyone who wanted one, free of
> Relevant quote from GPL:
> Finally, any free program is threatened constantly by software
> patents. We wish to avoid the danger that redistributors of a free
> program will individually obtain patent licenses, in effect making the
> program proprietary. To prevent this, we have made it clear that any
> patent must be licensed for everyone's free use or not licensed at all.
That's in the preamble, which lays out the rationale behind the license
but is not itself, I believe, a legally-enforceable statement. "We have
made it clear" is obviously a reference to section 7 of the GPL (see
below), which would be the controlling legal authority.
> If it's published under GPL, it's free to use for
> anyone, which pretty much voids enforcing a patent.
The GPL's only reference to patents, aside from the preamble, is in
sections 7 and 8.
Section 7 simply says that you can't use a patent license as an excuse
to evade your responsibilities under the GPL. For example, let's say you
had a license from a patent holder to implement a patented algorithm,
but the license forbade you from distributing the source code to your
implementation. Let's further say that you take a GPL'd program and add
this patented algorithm to it, and then distributed binaries. The patent
license requires you to not distribute source for the patented
algorithm, but the GPL requires you to distribute ALL source. You might
be tempted to argue that the patent license somehow takes precedence
over the GPL, so it's okay for you to distribute incomplete source, but
section 7 says no, you can't do that. The only legal solution is for you
to not distribute the program at all, since you cannot obey the patent
license without violating the GPL, and vice-versa.
Section 8 says that you can limit distribution of GPL'd code in order to
comply with regional patent issues. So if your program violates a patent
in the USA, you can release your code under GPL with the restriction that
it cannot be used in the USA.
Your claim is, in essence, that the GPL wins in a conflict between it
and a patent, and therefore the patent is effectively voided. This is
not true. If the two conflict, then there may be no way to resolve the
conflict. In other words, publishing patented material under the GPL may
be a violation of law. The patent is not voided, nor is the GPL
invalidated, but the person who created the conflict may be vulnerable
to a lawsuit.
Usual IANAL disclaimers apply.
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