[XviD-devel] License/legal discussions

Jan Rychter jan at rychter.com
Tue Dec 16 12:48:03 CET 2003

charact3r <charact3r at yahoo.com> writes:
> Jan, 
> 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?  

Yes, I have.

> > 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.

It does indeed seem crazy. Problem is, the replies I have gotten so far
from the FSF are not very clear on this, and the lawyers that I have
consulted replied very clearly that the problem does exist. To me that
means that even if I misinterpret the GPL/LGPL, the issue is at the very
least unclear and may cause problems in the future.

Mind you, the lawyers also said that the threat of litigation from the
copyright owners (XviD authors in this case) is minimal, so that I might
as well go ahead and ignore the problem, but this isn't exactly the way
I like to work.

I received a reply from the nice FSF folks in April, saying that Section
7 requires a prohibition (for instance, by a court or contract which you
have signed), rather than merely the threat of patent
litigation. Unfortunately, that does not clearly result from reading
Section 7, or at least none of the lawyers I have consulted read it that
way. In fact, Section 7 says:

  For example, 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

Please notice it doesn't say "a patent owned by you", it says "a patent
license". "A patent license" is understood by most to be "any patent

> 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.


> 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!!

Well, that one is a double-edged sword -- on the one hand it does
provide for easier insight into the source code, on the other hand it
does provide very nice widely disseminated prior art in some cases.

And one more thing: someone has just pointed out to me that OSLv2.0 also
has its problems, in particular it says:

  If You distribute copies of the Original Work or a Derivative Work,
  You must make a reasonable effort under the circumstances to obtain
  the express assent of recipients to the terms of this License.

... which seems to be a problem for mirror/archive maintainers.

This leaves me without a constructive proposition. Really, I don't know
of any "copyleft" license that is reasonable.

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