Licensing questions

[Mark Wielaard]

Hi Volker,

On Fri, 2010-01-22 at 10:58 +0100, Volker Simonis wrote:
> 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..

I don't mind (but please do ask next time before bouncing private
communication public) and I will reply on-list since you did, but this
is really getting way off-topic.

> 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.
> >
> 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.

OK, please do use the term patent then in the future.

> 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.

It is not just GPLv2, it is any free software license that grants Use
rights, since patents cover usage. You don't need to mention them
explicitly. But the GPL[v2] actually does and makes clear that is the
explicit intent of the person distributing code under the GPL right from
the start:

"We wish to avoid the danger that redistributors of a free
program will individually obtain patent licenses, in effect making the
program proprietary.  To prevent this, we have made it clear that any
patent must be licensed for everyone's free use"

> 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."

Of course they are lawyers, so they have to put in some handwaving :)
But their conclusion at the end of the paper is actually pretty clear,
one can rely on patent rights being granted through the GPL:

"from available case law, it is reasonable to conclude
that the implied license defense is available and tenable
for a defendant in a patent suit involving software
released under the GPL."

This is the same advice I got from the FSF when I asked whether the
patent grants from Sun for OpenJDK through GPLv2 were strong enough. The
GPL acts like a patent shield between all parties.
http://developer.classpath.org/pipermail/classpath/2006-November/001675.html

> 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."

GPLv3 definitely strengthens the patent grant by including not only
direct distributors, but also preventing tricks like granting your
patents to another party and then making it sound like they granter and
the distributor are different entities (like in the Novell/Microsoft
case). So, the GPLv2 OpenJDK code base only covers Sun, now Oracle, and
all contributors to the OpenJDK code base directly. GPLv3 would also
cover some third parties if Sun tries to do a run-around and claim some
party didn't actually contribute but only waved the patent for them but
not the general public. (But this is already covered through the JCP,
all parties grant all their rights to Sun, so they can redistribute
those.)

> 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.

They intentionally chose it because GPLv3 didn't exist yet, when they
released all the code :) I would support an upgrade to v3 now though if
that eases your concerns.

So there are really no concerns here, even for some of the large
companies that now distribute our code, if you just follow the GPL when
redistributing any OpenJDK derivative. I cannot give you advise about
proprietary redistribution though.

> >  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