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

From: Peter Berenyi <ber@sa.eol.hu>
Date: Wed, 01 Jan 2003 02:00:22 +0100
Message-ID: <3E123DA5.AEF365D4@sa.eol.hu>
To: www-patentpolicy-comment@w3.org

> Re: Limited domain a compromise, but much better than RAND
>
> From: Eric Kidd (eric.kidd@pobox.com)
> Date: Tue, Dec 31 2002
>
> 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?

From section 7 of the GNU/GPL:

"if a patent license would not permit royalty-free redistribution of the Program by all those who
receive copies directly or indirectly through you, then the only way you could satisfy both it
and this License would be to refrain entirely from distribution of the Program"

Your scenario 2, together with section 7 of GPL prevents *distribution* of GPL'd software
(because by distributing the software you grant an unrestricted license to anyone to use it for
any purpose *as it is*, but you can not do that, because the code is dependent on some patent
which has a field of use restriction). However, if distribution of a software is forbidden, it
can not be GPL'd at all.

Your scenario 1 is different, because in this case the distributed code itself is not dependent
on any non-free patent, so it can be distributed under GPL without any problem. If anyone wants
to modify it later on, it is her responsibility to make sure the particular way she chooses for
this modification does not infringe on a non-free patent. If it does, she does not have the right
to distribute the modified verson freely. If she does not have this right, she is not permitted
to publish it under GPL. However, according to the GPL, nor does she have the right to publish it
under any other terms. But she can still distribute the original version and use it for any
purpose.

In other words: the ability to redistribute and to use the software for any purpose are absolute
requirements to GPL, applied recursively while the ability to modify it is only recursive with
respect to the GPL itself. If you can not modify the code in a particular way, you will not
modify it that way. But if you can not distribute it freely, you will not GPL it. The two thigs
are very different.

--
Peter Berenyi
Systems Administrator
email: ber@sa.eol.hu
mobile +36 20 411 0580
Received on Tuesday, 31 December 2002 20:00:29 GMT

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