Subject: Re: IETF Patent Licenses are RAND
From: Eben Moglen <moglen@columbia.edu>
Date: Thu, 20 Mar 2003 15:39:01 -0500

On Thursday, 20 March 2003, Lawrence E. Rosen wrote:

  To: The Open Source and Free Software Community
  
  The situation in IETF is far worse than I feared.  The current IETF
  patent policy is leading to all-RAND-all-the-time.  

That's my conclusion as well, on the basis of a less eye-dimming
sampling approach taken last winter.  I'm very grateful to Larry for
confirming my conclusion on the basis of an exhaustive study.
  
  As I understand the GPL, none of the IETF standards that include that
  patented technology can be implemented under the GPL because of its
  Section 7.  
  
This is further than I would go.  Section 7 prohibits distribution
under GPL if you cannot fulfill the requirements of the license
because of other conditions *imposed* on you by, among other things, a
judgment of patent infringement, interim measures short of judgment,
such as a preliminary injunction, or contractual limitations such as
non-disclosure agreements or patent licenses.  But you are not unable
to distribute under GPL unless those requirements have been *imposed*.
Until a particular party distributing GPL'd code has either accepted a
license whose requirements are incompatible with GPL or has been
ordered by a court of competent jurisdiction to do or refrain from
doing in a fashion incompatible with GPL, there is no direct conflict
with the requirements of the license, and no requirement to refrain
from distribution.  With regard to patents, in particular, no one
*ever* has an obligation to refrain from making, using or selling
technology that *may* practice patent claims solely because someone
somewhere has taken a patent, claims to have a patent, or even
publishes a license.  Only the demand that you in particular take a
license or cease infringing triggers theoretical liability under US
patent law.  Whether there can be liability for damages for the period
before such notification is another question, legitimately of
importance to those who commercially distribute free software, but not
ordinarily of significance to those who develop only, or who
distribute non-commercially.

Moreover, patents are not global, only local.  To say that we cannot
*develop* under GPL because a patent exists in country X, and a
license has been published there to which those making, using, or
selling in country X *might* be asked to subscribe would go much too
far.  That situation certainly does not prevent development elsewhere,
and distribution under GPL can certainly proceed.

None of this changes our fixed concern with patents embodied in
standards on GPL-incompatible terms.  They're bad, and we're fighting
hard.  But we need not refrain from releasing code under GPL solely
because someone is working a patent shakedown.  The license is more
robust than that, and indeed--for reasons I've described elsewhere--
section 7 can actually provide important mutual defense against
assertions of supposed patent rights, but it can only do so if code is
licensed under it.

Best to all,
Eben

-- 
 Eben Moglen                       voice: 212-854-8382 
 Professor of Law                    fax: 212-854-7946       moglen@
 Columbia Law School, 435 West 116th Street, NYC 10027     columbia.edu
 General Counsel, Free Software Foundation   http://moglen.law.columbia.edu
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