[XviD-devel] License/legal discussions

charact3r charact3r at yahoo.com
Mon Dec 15 02:33:05 CET 2003


BTW IANAL and I CC'd this to the people at FSF just in
case they have time to give us any pointers on
GPL/patent interactions.

> 4) Licenses that wage a total patent war. All of the
above restrictions,
>   plus a requirements that _NO RESTRICTIVE PATENTS_
apply to the code
>   being distributed. This means that if there are
any patents, held by
>   anyone, which might restrict the users rights with
respect to the
>   license, you may not use the license at all. GPL
and LGPL fall in
>   this category. It is hard to understand what the
point of such a
>   restriction was, as it basically tries to make the
patent world "go
>   away".

Have you taken legal advice on this?  As I understand
it, GPL does not require that no restrictive patents
apply to the code being distributed.  This would be
crazy: authors and contributors would have to conduct
an extensive worldwide patent search before they
commit any code.  Also there are so many unenforceable
patents with prior art or without inventive step that
I'd bet even "Hello World" would infringe.  

When briefed by company lawyers about GPL (actually a
while back now), we were told this:  GPL essentially
requires that a set of rights, concerning freedom to
modify and redistribute, be passed on.  Commercial
patent licenses generally require a restriction of the
rights that are given to recipients of the technology.
 GPL clause 7 merely points out that neither set of
obligations excuses you from the other.  In many
cases, this presents companies like yours with a stark
choice:  either violate GPL (by licensing patents for
only a subset of people that might receive your code),
or infringe patents (by not paying MPEGLA), or don't
use xvid.

 Christoph> That's one reason why we had to restrict
 Christoph> distribution in the last release to
exclude the USA and
 Christoph> Japan, where software patents are valid.

I agree with Jan here that this restriction is not
much help.  Software can violate patents even in
countries that do not allow "software patents". 
Otherwise there would be a huge patent loophole in
such countries:  just make sure that hardware is quite
generic and that all patented technologies are
implemented in firmware.

I also agree with Jan that, depending on what you are
trying to achieve, there are better licenses than GPL
when it comes to patents.  When I started the hdot264
project I wanted to allow commercial use and encourage
corporate contributions so I went for a triple
license:  GPL/LGPL/MPL.  Under this system a licensee
can chose under which license he wants to take the
code.  However, I discovered another _HUGE_ problem:

Even without the GPL restrictions, there is another
reason why open-source + patents is a deadly mix for
corporations:  If a company is using open-source in
it's products, then a litigious patent-holder can use
the source as evidence to prove infringement.  Let's
make the reasonable assumption that there are several
aspects of the xvid decoder implementation that
infringe non-MPEGLA patents.  Remember MPEGLA only
attempts to cover "essential" MPEG-4 decoding patents
and a real, optimized implementation is likely to
infringe even more patents.  Because xvid is open
source, the owners of the non-MPEGLA patents will wait
until you sell 100 million xvid-enabled set-top-boxes
and then use the xvid sourcecode as evidence that you
infringed their patent.  Open-source and patents
really are like oil and water!!

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