[copyleft-next] copyleft-next patent commons?

Pamela Chestek pchestek at gmail.com
Mon Feb 25 14:42:16 UTC 2013


On Mon, Feb 25, 2013 at 8:43 AM, Gervase Markham <gerv at mozilla.org> wrote:

>
>
> > In theory you could cure that
> > defect with some redrafting, but I'm not sure there's a way to
> > accomplish what you'd like with a license.
>
> Are you sure? A license is permission to use a work given compliance
> with some conditions. In this idea, the condition is based upon your
> behaviour, the licensee (which seems fine) and it's a condition that you
> not file lawsuits about certain subjects. That doesn't seem to be to be
> impossible on the face of it.
>
> I would replace "this License" with "the copyleft-next License", in the
> same way that it's referred to in the "future versions" clause. That's
> the sort of reference we need.


> I can't say "if you breach my
> > license you don't get to use Bob's work" because there is no privity
> > between Bob and me so I have no legal right to dictate what happens to
> > Bob's work.
>
> It would be _Bob_ saying "if you breach his license, you don't get to
> use my work", because Bob would also be using copyleft-next.
>

You're right, it's possible to say that.

>
> That also doesn't seem impossible. If I license my software to you "as
> long as you remain in a business partnership with Fred", and Fred
> subsequently dissolves the partnership, and then says "you no longer
> have a right to use that software", he's right. Isn't he?

> past that significant drafting hurdle (Richard?), query whether you're
> > getting into antitrust problems by creating a group boycott.
>
> It would be a good problem to have if copyleft-next became so pervasive
> that antitrust law was a risk! However, a quick look at what a group
> boycott is seems to imply that it wouldn't be an issue.
>
> http://en.wikipedia.org/wiki/Group_boycott :
> "two or more competitors [nope: two authors of probably
> otherwise-unrelated software] in a relevant market refuse to conduct
> business with a firm unless the firm agrees to cease doing business
> [nope: cease filing lawsuits] with an actual or potential competitor
> [nope: against its own suppliers] of the firms conducting the boycott."
>
>
> I prefer the Federal Trade Commission's definition of group boycott, since
they're the ones who enforce the law. "Any company may, on its own, refuse
to do business with another firm, but an agreement among competitors not to
do business with targeted individuals or businesses may be an illegal
boycott, especially if the group of competitors working together has market
power. For instance, a group boycott may used to implement an illegal
price-fixing agreement. In this scenario, the competitors agree not to do
business with others except on agreed-upon terms, typically with the result
of raising prices. An independent decision not to offer services at
prevailing prices does not raise antitrust concerns, but an agreement among
competitors not to offer services at prevailing prices as a means of
achieving an agreed-upon (and typically higher) price does raise antitrust
concerns." http://www.ftc.gov/bc/antitrust/group_boycotts.shtm

An unlawful group boycott does not require market power. LibreOffice and
OpenOffice are competitors; there are many competitive open source
projects. And you don't have to be trying to put them out of business, only
detriment them in some way, and certainly terminating their licenses to
software entirely unrelated to the dispute could have a significant
business effect. Competitors acting in concert in ways that are intended to
adversely affect another's business are in group boycott territory, and
that's what you're suggesting. I'm not saying that it necessarily would be
here, but you're getting to that territory.

Pam
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