Re: Withdrawal of Approval and Second Last Call: draft-housley-tls-authz-extns

[Theodore Tso <[e-mail]>]

On Wed, Apr 11, 2007 at 10:27:31AM +0200, Brian E Carpenter wrote:
> >1) You seem to assume that GPL implementers would violate the patent
> >   license by redistributing their code without sending a postcard.
> >   In order words, your question assumes and implies bad-faith amongst
> >   GPL implementers.
> 
> Not specifically. My question is a practical one. People who receive
> open source code, tweak it, and install it may often be completely
> unaware that they should be asking for a license. Do we have any
> practical evidence that IPR owners actually care?

Well, if IPR owners don't actually care, why are they asking people to
send a postcard?  It would seem to be an unnecessary administrative
burden for the IPR owners, yes?

> >   What typically happens in practice, among good-faith practitioners,
> >   is that there won't be any GPL (or Apache, or Mozilla, or ...)
> >   implementation of the patented technology at all, because the
> >   necessary rights cannot be acquired.
> 
> Doesn't that sound like a bug in the OSS licenses to you, assuming the
> desired result is to make the Internet work better?

It's not bug in the OSS licenses at all.  Rather, it's a choice (based
on ethics/legal paranoia/whatever) of implementors not to risk having
to spend millions and millions of dollars defending a patent lawsuit.
In some cases, paranoid corporate lawyers might be involved as well,
telling implementors that if they can't fulfill the terms of the
patent license, they may not write or release code which could
potentially result in a lawsuit claiming the person implementing said
patented technology was inducing end users to infringe (since it's
pretty much axiomatic that 99.99% of people downloading code won't
know that they need to "send a postcard").  I suppose if the RF
license allow a program to automatically send an HTTP request to
automatically request a license --- but that seems like a great way to
slashdot the IPR holder's web servers, if an open source software
package using said RF license gets popular!

Let's reverse the question --- why do IPR holders feel they need
people to explicitly request a royalty-free license?  It seems like
it's just unnecessary administrative work on their end for no cost.
Unless, of course, it's not perpetual, as was alleged with a certain
XML office document patent grant, which meant that a certain company
could pretend to release sofware under what appeared to be a Royalty
Free License, but then required every user to go on bended knee to
request a license, which could be denied at any point in the future if
said company changed its mind.

The state of Massachusetts chose to use the OASIS Open Document format
partially because of this concern, so such patent licensing choices
can make a huge difference in terms of standards adoption.

So to me this seems to be more of a question similar to the
controversy of labelling food as "Organic".  There will be companies
that may want to label their patent licenses as "Royalty Free", but
not necessarily make them be perpetual, or require each individual end
user to fill out a form and mail it via paper mail and wait for a
paper response before they wouldn't be infringing the patent --- but
the net result of it may be to inhibit using the patent unless actual
dollars are paid to the IPR holder.  No question, that is the right of
the IPR holder to do so, to the extent granted by the relevant legal
jurisdition(s).  But the question is whether they should be allowed to
call such a patent "royalty free" --- either by creating some set of
standards which are trademarked, much like the Open Source Definition
did for copyrights --- or by some organization, like the IETF,
refusing to a characterize a patent license as being "royalty free"
(or pick some other term denoting that the license could actually be
practically used in Open Source Software).  And like the massive
debates over "organic foods", there will no doubt be a lot of debate
and disagreement about what those standards should be. 

					- Ted

Disclaimer: These are my own personal opinions and not necessarily the
opinions of my employer; I'm not important enough to affect the
opinions of my employer.  :-)

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