[vorbis] Patents and GPL (was: Re: PlusV)

Craig Dickson crdic at yahoo.com
Thu Oct 18 12:53:28 PDT 2001

(Cc'd to rms to allow him to correct any misunderstandings on my part.)

Jack Moffitt wrote, regarding the hypothetical situation of a program
that simultaneously incorporated patented material and was licensed
under GPL:

> I'm curious what this state is.  What are the legal ramifications of
> being in this unresolved conflict?

I think the copyright owner of the GPL'd program could probably sue for
the obvious GPL violation. Let's take a fairly simple example:

You have a license to some patented algorithm. Let's assume, for
simplicity, that there are no restrictions on your use of the patented
material, except that your license is exclusive to you and cannot be
transferred, nor can you grant additional licenses. So you can use it
any way you like, and you can even distribute source code to your

Now, you take someone else's GPL'd program -- GNU Emacs, perhaps -- and
incorporate this patented algorithm into it. You distribute binaries and
full source for your modified Emacs.

At first it seems like there's no GPL violation here, because you are
distributing full source code. But there's a problem. If I take your
Emacs and want to fix a bug in your implementation of the patented
algorithm, I can't, because I don't have a license to the patent. Well,
I could fix it for my private use, perhaps, but I certainly couldn't
distribute the fixed version. I can send my fix back to you and hope
that you'll incorporate it and release a fixed version, but I can't fork
the code base because of the patent. So even though you've distributed
full source code, the program is no longer truly free as required by the
GPL. Therefore you, in distributing this Emacs-with-patented-material,
have violated the GPL, and you'll probably be hearing from Eben Moglen
once someone tells him about it.

How can you fix the problem? Unfortunately, I don't think you have the
power to fix it. You can't un-release your code; without the cooperation
of the copyright owner (the FSF, in the case of Emacs, I believe), you
can't resolve the GPL issue; and without the cooperation of the patent
owner, you can't resolve the licensing issue. You have created a problem
that you cannot solve.

The FSF could resolve the issue by granting you a special-case license
to Emacs, but they have no incentive to do so; it's not their problem,
and they don't want people thinking that they'll get away with violating
the GPL. The patent owner could resolve the issue by giving up his
patent, or perhaps by legally binding himself to a policy of giving
perpetual royalty-free licenses to anyone who wants one, free of charge.
But again, he has no incentive to do this; it isn't his problem, and
it's potentially a serious loss of revenue for him, if his patent is
likely to generate future income via licensing fees and/or royalties.

How the legal system might deal with this in terms of monetary or other
compensation for copyright violation, I have no idea.

Again, IANAL disclaimers apply.


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