Re: GPL'ed Patent Pool

[Rob Landley <rob landley net>]

On Monday 13 September 2004 17:36, Havoc Pennington wrote:
> On Fri, 2004-09-10 at 15:40 -0500, Linas Vepstas wrote:
> >    RedHat sort-of tried to do this, but its so weak and
> >    half-hearted that its all but useless.
> >    http://www.redhat.com/legal/patent_policy.html
>
> Certainly is not intended to be weak or half-hearted, doesn't look that
> way to me. But I am not a lawyer.
>
> Havoc

I wouldn't describe it quite the same way Linas does, but:

A) This page isn't a license.  This is legalise wherein, and I quote, "Red Hat 
agrees to refrain from enforcing the infringed patent against such party for 
such exercise..."  It's like the IBM promise not to sue.  This is not "you 
have the right to use this patent under these conditions", this is "we 
promise to look the other way".

B) The GPL has an element of collective action.  Contributions from multiple 
parties band together under the same umbrella.  Red hat's patent policy has 
no element of collective action, it is a unilateral move on the part of red 
hat with no others invited or expected to join in.

C) It's not a specific grant of rights, and there are no specific patent 
numbers accessable from that page.  There's nothing specific about it, 
instead there's a list of licenses which may be amended at any time.  Any 
lawyer trying to figure out the scope of what jumping on board this thing 
would grant now has to read and understand the details of a half-dozen 
licenses, rather than just the GPL (and possibly LGPL).  And Red Hat grants 
itself the right to add to it twice (both saying it can add to the list and 
listing "any open source license granted by red hat", which could be argued 
in court that since Red Hat ships BSD code in its distros, then Red Hat's 
patents are allowed to be used in BSD code, and half the exercise is to avoid 
that.  Certainly if Red Hat wanted to add BSD, this thing lets them, meaning 
no third party in its right mind would jump on board this while Red Hat 
controls the list like that...)

D) It's murky legalese contining fun little self-interest clauses like "Our 
Promise does not extend to any party who institutes patent litigation against 
Red Hat with respect to a patent applicable to software (including a 
cross-claim or counterclaim to a lawsuit).", which is a pure selfish CYA move 
on the part of Red Hat's lawyers that may actually erode what little 
protection this provides to third parties.  Potentially even Red Hat's own 
customers.  (But Your Honor, we didn't sue Red Hat, we sued Autozone.  So Red 
Hat can't use its patents against us, they promised!)

Red Hat clearly means well, but this isn't it.  There's no potential for 
collective action in this policy.  Any third party trying to jump on board 
and license its own patents under the terms of Red Hat's patent policy is an 
idiot, and would probably only confuse Red Hat if they tried.

Rob
-- 
www.linucon.org: Linux Expo and Science Fiction Convention
October 8-10, 2004 in Austin Texas.  (I'm the con chair.)