[clug] Consume But Don't Try Programming [was viva la DMCA? [was: Against US-AU FTA Intellectual Property Clauses]]

Darren Freeman daz111 at rsphysse.anu.edu.au
Mon Apr 12 08:12:03 GMT 2004

On Mon, 2004-04-12 at 17:18, Jepri wrote:
> Darren Freeman wrote:
> > On Sun, 2004-04-11 at 20:14, Jepri wrote:
> Ok, we're both noticing that we're wearing on a bit, but we're both 
> eager to have at it.  So I propose we settle this blog style.

I don't accept, I'm dropping out of the debate. I achieved what I
wanted, that is to get people talking. Now I'm coding, and well and
truly sick of talking.

If you wish to continue, try asking Rusty. He's the one who got me
talking, he's had a recent law refresher due to this topic.

> Let's put up a webpage with a joint authored document on it.  We can go 
> three rounds debating style, or back and forth, whatever.
> That'll stop the flood on the list, we won't be repeating points, and it 
> will allow us both to gather our points and make better arguments.  And 
> with multiple rounds of editing, we can both avoid inaccurate statements.

Again, no time to gather more points. But if you feel like it then by
all means do it. Nothing wrong with hearing both sides of a debate.

> > Seriously dude name the place where it is crazy, and we might have the
> > author committed. Otherwise stop the wild accusations.
> Detailed response at url: 
> http://babylon.alphacomplex.org/~jepri/Ban_the_petition.html .
> The crazy bit is where he claims there's a ban on open source software 
> implementing patents.  At that point, he left ground.

I think what he means is free software implementing patents. According
to the GPL, you have to give everybody equal rights to use and share the
code. This rules out paying royalties on behalf of some users and not
others. So any case where a patent hasn't beed licensed for all users of
that piece of code ad infinitum, would rule out GPLing the code. I don't
know what happens when it's already GPLed, I suppose the GPL is
suppressed and nobody can use the code until all the authors agree to
re-license it as something else. Including all patch submissions etc.

Under the wider definition of open source, that is a project where the
source code is open to the user, then patents are OK. For example, a
contractor delivers the government some code and covers the patent
licensing issues at the same time. But most people think of free
software when they say open source, it isn't enough that one user has
the code, all users should be able to share the code. So say the
government then wants to GPL the code they paid to create. Can't do it,
the patents are only licensed to the government.

At present, the solution is to never license software patents as there
haven't been many cases where they held up in court anyway. For example,
there's a clause at the end of the Mandrake license which says that some
software may be patented in your country. Please find out what that
software is and pay the fees. They point to MP3 players as one culprit,
since MP3 is patented by the Fraunhofer Institute.

With strictly enforceable software patents, that would make things much
worse. Each country would need its own compiled list of infringing free
software which the user would then have to wade through and pay for in
order to use.

Mandrake doesn't have the ability to attach royalty payments to their OS
as a whole, since these payments would have to cover the source
contained within for everybody ad infinitum. And as they don't have the
right to un-GPL code, they can't relicense it as something else. If I
had received an MP3 player from Mandrake, royalties paid for, the GPL
says I can give it to everybody else. But I can't give them the same
royalty status since they have to negotiate with the owner themselves.
So I am forbidden from distributing under the GPL. Since Mandrake can't
give me the right to distribute under the GPL, they can't distribute
under the GPL. Therefore every piece of code in my favourite Linux
distro, which is covered by a software patent, may not be given to me
under the GPL because my country enforces a patent on it. Therefore
Mandrake may not be able to give it to *anybody* since they can't give
everybody equal rights.

It's all a bitch from that point on. The whole thing unravels and you
have to very carefully eliminate all infringing pieces of code from your
distro, in all countries where they might infringe (unless you create
one distro per country). Since software patents are going to be a
minefield, nobody will ever be sure if they're clean until they're sued.
That may mean withdrawing whole GPLed projects since patch contributors
aren't going to go along with relicensing as proprietary, and in fact
most original authors won't either. And how do you tell users to
uninstall software now that it's illegal?

> There is no ban on Open Source Software using patents.  Not in any country.

but as I've just demonstrated, it makes things so hard that there *will*
be entire projects that collapse as a result

> This petition is going to go to our MPs, and they're all going to think 
> "What are they talking about?".  And then people at my work are going to 
> make jokes at my expense, and make my job harder.

Sounds to me like you should be working somewhere else if people are
that quick to judge you. I know my workmates wouldn't do that. I guess
that's the benefit of academia.

Have fun,

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