[copyleft-next] copyleft-next patent commons?

Gervase Markham gerv at mozilla.org
Fri Feb 22 17:42:42 UTC 2013


On 22/02/13 17:25, Richard Fontana wrote:
>> In other words, if you sue someone over a patent in a copyleft-nexted
>> work, you lose rights to use all copyleft-nexted works. As
>> copyleft-nexted works become more common and more useful (say e.g. a
>> copyleft-nexted work was incorporated into Android) 
>> it would become more
>> and more of a bad idea to sue anyone for patent infringement relating to
>> such work. After all, in that case, the first thing you'd have to do is
>> replace all the company Android phones with iPhones...
>>
>> The potential disadvantage of this, presumably, is the risk that
>> organizations will be less interested in writing or using
>> copyleft-nexted works.
> 
> Right. 
> 
> The proposed change seems to be similar to provisions that were, in
> the admittedly distant past, criticized when they appeared in some
> open source licenses. MPL 1.1 comes to mind. :) 

That's not quite the same. MPL 1.1 section 8.2 b) provides that you can
lose rights to use the Modifications of a contributor to an MPLed work
if you launch patent litigation against them about _anything_.

So if megacorps ABC and DEF were collaborating on project Foo, and a
random subsidiary of ABC sued another random subsidiary of DEF about a
patent on the unrelated Bar widget, then ABC would lose their rights to
DEF's bits of Foo. This causes action-at-a-distance - said warring
subsidiaries may have no idea what they just did, as their lawsuit had
nothing to do with the MPL and they may never have heard of it.

However, if the commons is made up of all copyleft-next software, and
the termination applies only to litigation related to copyleft-next
software, then the prospective litigious party would not be able to say
that they had no knowledge of the potential consequences of their
actions, because it's written right there in the license they are suing
over.

Are there other licenses which you know of which may have had a clause
like the one I propose?

> (If I recall
> correctly, MPL 2.0 takes a more conservative approach.) 

MPL 2 does not have such a provision; rights (all rights from everyone,
contra Apache, where you lose only all patent rights) are rescinded only
if you sue over the MPLed bit of software.

> Anyway, this is certainly worth thinking about further.

Cool :-)

One possible issue is how this would interact with the "safety valve"
clause which allows relicensing under GPL 2 or 3. Could a company using
copyleft-next software simply say "I'm using it all under GPL 3; my
rights remain intact"? Could they do that even after this provision
triggered?

Gerv


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