Licensing questions

[Volker Simonis]

Hi Mark,

I hope you don't mind that I also post this back the discussion list,
but I think this is a much too important topic in order to hide it in
a private communication. Please see my other comments inline..

On 1/21/10, Mark Wielaard <mark at klomp.org> wrote:
> Hi Volker,
>
>  Taking off-list, since I assume this is all about proprietary
>  derivatives, which are a bit off-topic on the list.
>
>
>  On Thu, 2010-01-21 at 14:52 +0100, Volker Simonis wrote:
>  > Unfortuantely I'm afraid it's not a comlpetely different issue because
>  > by licensing the TCK you automatically get the rights to use all the
>  > IP from Sun's Java implementation. You can of course use the OpenJDK
>  > completely safe from a licensing point of view as long as you conform
>  > to the licensing terms, but you can never be sure you don't violate
>  > any IP rights. And as far as I know Sun has never commented on which
>  > IP is build into OpeneJDK nor how they made any statement on how they
>  > plan to handle this. Such a statemnt or promis would have been
>  > invalideted anyway now by the Sun/Oracle merger.
>
>
> I have some trouble reading this since it isn't clear what you mean
>  precisely with "IP", I assume you mean copyrights, patents and
>  trademarks. You are right that only copyrights and patents are
>  explicitly granted to you through the GPL and not the trademark to
>  Java(TM) (assuming that actually is still a valid and enforceable
>  trademark).
>

What I was meaning with "IP" was exactly "patents". I think the
copyright issue is clear and we don't have to further discuss it. The
same applies to the "Java" trademark, which is a completely different
question.

But I see a real issue with patents. I know that many people
(especially free software people) claim that the GPLv2 already grants
you the patent rights on the covered code. But I think in reality this
is not so clear, because it is not done explicitly in the license. I
know about the "Implied license theories" and the claim that the GPLv2
grants an implicit patent license - at
http://www.fenwick.com/docstore/Publications/IP/potential_defenses.pdf
you can find a very nice summary of this topic. But even there the
authors, which are lawyers by the way, conclude that: "Because the GPL
[v2] is different from licenses normally available to business
entities under patent law, and the applicable equitable doctrines are
under broad judicial discretion, the courts may ultimately dispense
with GPL [v2] issues in a manner different than as discussed herein."

After all, this unclarity was one of the reason for the creation of
the GPLv3 which explicitly grants GPLv3 licensees patent rights on the
licensed code. So Richard Stallman himself writes in the article "Why
Upgrade to GPL Version 3" (http://gplv3.fsf.org/rms-why.html): "GPLv3
also provides for explicit patent protection of the users from the
program's contributors and redistributors. With GPLv2, users rely on
an implicit patent license to make sure that the company which
provided them a copy won't sue them, or the people they redistribute
copies to, for patent infringement."

For all these reasons I think that using GPLv2 code still bears the
risk of patent infringements. Of course this is no real threat for
people doing free software, because there's nothing (i.e. money, $$$)
you could sue them for. But for big companies this may be a real
problem.

With OpenJDK I'm afraid that Sun INTENTIONALLY chose GPLv2 instead of
GPLv3 to keep all options open and now that Oracle owns all the code,
copyrights and patents, this may get a real thread.

I just hope I could make my point clear now. Any comments or other
opinions are of course highly welcome!

Volker

>  For a proprietary derivative you could also be granted the same through
>  the JCP process that seems to involve passing the TCK. And I believe
>  that also includes trademark rights for calling stuff Java(TM). But for
>  products directly derived from the OpenJDK code base any of that really
>  matters, since when following the requirements of the GPL you already
>  have those (except the trademark).
>
>  I actually agree that we should make sure the TCK is also released as
>  Free Software, and that the JCP should be changed so the rights granted
>  through the OpenJDK reference implementation flow towards anybody
>  creating an implementation of a JSR. But I don't think requiring
>  copyleft to pass through patent claims and copyrights for making
>  derivatives is such a bad thing. It might not be ideal for someone
>  wanting to create proprietary code, but it has huge advantage of
>  protecting and expanding the free software ecosystem.
>
>  It seems to me that having the TCK as free software so anybody could use
>  it as they wish, and declaring particular instances as reference test
>  suite for granting the trademark would be a great extension to the
>  current setup.
>
>  Was that what you were discussing when you used "IP" in the above?
>
>  Cheers,
>
>
>  Mark
>
>