Development of Creative Commons licenses

["Greg London" <email AT greglondon.com>]

> Javier Candeira schrieb:
>> GPL v2 does protect the work from software patents.
>
> Ah, I seem to have overlooked that one.
>
> I have two nits to pick with your statement:
>
> 1) Software cannot be protected from patents.
> Protection from patents is something that can
> be granted to persons or companies, not to software.
> (This is slightly hair-splitting, but saying
> "the software is protected" doesn't make sure
> whether it's the licensor or the licensee who's
> protected.)

Oy. The community creates some SA software.
Evil Corp comes in and creates a derivative.
The derivative is licensed SA, but it also
contains a software patent. Because the
community does not have a license to use
the patented piece, the community cannot
use the software, even though it is SA/copyleft.

It's like tivoization.
A copyleft license that only focuses on copyright
law can leave possible routes open for others
to do an end run around copyright and the license,
and manage to restrict the work, while honoring
the letter of the license.

GPL says you can use our software with a software
patent, but you must license the patent Freely.
If you don't, your license to the work is revoked.

If you try to end-run the GPL license,
you get the rug pulled out from under you,
and you can't use the software at all.

So, you can try to dismiss it as "hair splitting",
but the point is that GPL protects the community
from being screwed by someone applying a software
patent to close off a work from the community.


> 2) The protection that this license offers
> is rather marginal. No language in a license
> can protect the licensees from third-party patents.
> Worse, this offers an opportunity for a nasty trick:
> if the license is advertised as "protects from patents",
> a company can create a subsidiary that owns and
> distributes GPL software that uses patents held by the
> parent company. The parent company stays silent about
> the patents, waits until the software is used by many
> people, then comes forth, announces the patent and collects.

Impossible fantasy. If patents exist, and they are not Free,
then the company loses all rights to the work, and are in
violation of copyright law. They had no right to distribute
the work if it has patents in it. So they cannot collect.

> With the right construction, the relationship between
> company and subsidiary need not even be public.
> The only thing that helps against this kind of plot
> is the counterplot to any software patents: do the
> patent research, and good luck to you...

This is a "movie terrorist plot" for copyright.
It's the idea that people watch some movie
about terrorists setting up fake toll booths
to raise money for their operations, and suddenly
people scream that somebody needs to make sure
that terrorists aren't setting up fake toll booths.
Never mind that the movie has absolutely nothing
to do with reality.

> Nit (2) essentially says that the website should be
> very, very careful about claiming any kind of protection.
> Even if the website authors cannot be held responsible if
> somebody relies on the information given, a single case
> where somebody is damaged can destroy CC's reputation in
> no time at all.

CC isn't claiming it provides any kind of protection.
CC doesn't have any kind of patent protection in any
of its licenses.

I was saying they should specifically state that,
and state that licenses such as GNU-GPL actually
do provide some level of protection against patents
making the work not Free.

CC can't lose any reputation points for that.
Worse thing that happens is they say
"GPL has some patent protection"
and then someone manages to find a loophole in
the GPL that somehow allows them to use a patent
to make the work nonFree. And at that point, no
one is going to point fingers at CC and say
"Why didn't you warn me that the GPL patent protection
wasn't perfect!"

Never mind the fact that the legal maneuvaring for
something like that to happen would make your
completely contrived example look like a day in the park.