W3C home > Mailing lists > Public > www-patentpolicy-comment@w3.org > December 2002

Re: Limited domain a compromise, but much better than RAND

From: Eric Kidd <eric.kidd@pobox.com>
Date: 31 Dec 2002 18:36:55 -0500
To: Dan Kegel <dank@kegel.com>
Cc: www-patentpolicy-comment@w3.org
Message-Id: <1041377814.1598.116.camel@whitestar.sourcebuilders.com>

On Tue, 2002-12-31 at 17:14, Dan Kegel wrote:
> Those of us who work on GPL software care about end users,
> and we want to make sure that *every* end user is able
> to run and use our software.  That's why the GPL is written
> so it can only be applied to patent-unencumbered software.
> It's also one reason why the GPL is the most popular free software license.

I strongly agree that W3C standards should be licensed under terms which
permit GPL'd implementations.

I'm not entirely convinced, however, by the Free Software Foundation's
legal reasoning in this matter: 

  http://www.gnu.org/philosophy/w3c-patent.html

Let's borrow their example: Programmer X writes a web browser, and
Programmer Y distributes a modified version of that browser.  BigCo,
Inc., owns a patent related to URL processing.  The web browser as
distributed by X does not infringe the patent.  Programmer Z wants to
borrow some code from the browser and use it in a web server--and
desires to use the patented technology.

* Scenario 1: Y does not infringe & no patent license from BigCo.

Y distributes a modified version of the browser, but she does not
actually infringe the patent.  BigCo doesn't license the patent to
anybody.

Z takes Y's version of the browser, borrows some code for use in his web
server, and modifies the code to infringe on BigCo's patent.

* Scenario 2: Y infringes, but has a field-of-use-restricted license.

(This is similar to the FSF's example, I think.)

Y modifies her version of the browser to infringe the patent, but has a
royalty-free, field-of-use-restricted license from BigCo (which covers
browsers, but not servers, as in the FSF's example).

Z takes Y's version of the browser, and borrows some code for use in his
webserver.  Unfortunately, Z is not covered by BigCo's license.

* Thoughts

In both scenario 1 and scenario 2, patent law prevents Z from modifying
the browser as he desires.  The FSF says that scenario 2 infringes
section 7 of the GPL.  However, I don't understand why a similar line of
reasoning can't be applied in scenario 1--which would effectively
prevent any GPL'd software from being distributed, because no GPL'd
software can legally be modified to violate patent.

So would somebody explain why scenario 1 and scenario 2 are different in
the eyes of the law?

> I urge the W3C to add an exemption for GPL software to the
> field-of-use restriction in the current proposal.

I urge the W3C to make sure all web standards can be implemented in
GPL'd software.  If they don't, I certainly won't be supporting those
standards in the software I work on.  But I'm not yet convinced that
current draft presents the problems alleged by the FSF.

Cheers,
Eric
Received on Tuesday, 31 December 2002 18:40:20 GMT

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