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

David Balazic david.balazic at uni-mb.si
Fri Oct 19 03:34:28 PDT 2001

Craig Dickson (crdic at yahoo.com) wrote :

> Jack Moffitt wrote: 
> > I agree that this might be the case. But what happens with the 
> > violation is by the author? :) 
> > 
> > Ie, in the case of PlusV releasing a patented codec under the GPL or in 
> > the case of LAME or FreeType's authors doing similar things. What 
> > state is that? 
> Ah, I see. So if I have a patent, and I write a program based on my 
> patent, and I release the program under GPL, what happens? 
> Well, the issues are at least resolveable, since I hold all the cards. I 
> may not like the solution, but at least I'm in a position to do whatever 
> it takes to resolve the problem. 
> One question is, who is in a position to sue me? I'm the copyright 
> holder of the program, and I am the patent holder. I'm not going to sue 
> myself. Is anyone else in a position to sue me (perhaps for deceptive 
> practices)? Or, looking at it another way, does the GPL somehow prevent 
> me from enforcing my patent? 
> Let's say you download my source code and release a modified version. 
> Can I still sue you for patent violation (and win), or does the GPL 
> protect you, somehow implicitly granting the sort of no-charge, 
> no-royalty license that would be required for GPL compatibility? 

I think "you" ( the downloader , who creates a modified version, let us
call him Bob ) can not distribute the modified program, because the patent
prevents you from doing that. The relevant section of GPL ( from Paragraph
7 ) :

--- start quote , text in [] is my comment ---
If you cannot
distribute so as to satisfy simultaneously your obligations under this
License and any other pertinent [ patent related ] obligations, then as
a consequence you may not distribute the Program at all.
--- end quote ---

On the other hand I have no idea if patent law forbids distribution of
"items" that use the patented technology, so Bob may distribute the software
after all. But the then no one who received that software can use it, because
usage is prohibited by patent law ( assuming that there is no non-exclusive
royalty-free licence for the patent, in which case there would be no problem
in the first place , I guess ).

As a conclusion , GPL can not by applied ( by anyone ) to software that has
patent issues.

Do not forget that all this is only my opinion and I am not a lawyer.

Also RMS said in his mail, that placing patented software under GPL implicitly
grants a patent-licence, so my opinion might be all wrong. On the other hand
the implicit patent licence sound too good to be true, so I would not count on
it just because some lawyer said it to so someone , somewhere ...

> Does the fact that patents and copyrights are two different things enter 
> into this? Is it possible for a copyright-based license such as the GPL 
> to imply a patent license, or make it harder to win a patent claim? 
> The logic I would like to see the courts apply in such a case goes 
> something like this: In releasing my program under GPL, without making 
> any explicit exception for the use of the patented material, I 
> implicitly granted permission for the use of the patented material 
> without royalty or fees of any kind, because otherwise the GPL makes no 
> sense as a license for this code. It's silly to release code under a 
> license that grants permission to release derivative works (under 
> copyright law) and then claim exclusive rights under patent law. 

It is also silly to sell hardware and then not write drivers for popular
OS-es ( like w2k(*) ), but (big) companies do it anyway.

* - also note that a w2k driver works not only on w2k, but also win98SE, win/ME
and winXP, so it is not just a w2k driver, but a driver for the majority
of existing windows machines

> Again, IANAL disclaimers apply. 

re :-)
> Craig 

David Balazic
"Be excellent to each other." - Bill S. Preston, Esq., & "Ted" Theodore Logan
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