Here are some of my ideas for Fedora 8 and Fedora 9

[Les Mikesell]

Erik Hemdal wrote:
>> From: Les Mikesell <lesmikesell at gmail.com>
> . . . .
>> Erik Hemdal wrote:
>>> . . . 
>>>>>> I think there would be an interesting legal argument that nearly all
>>>>>> potential users have already paid the relevant patent royalties
>>>>>> indirectly in the form of drivers and other software provided by the
> . . . .
>>> I think you're wise. Patent licenses cover the processes, but software
>>> licenses cover the individual implementations that might use patented
>>> inventions.  So you or I would probably be toast using that argument.
>>>
>>> Inventor patents an invention under Patent 1 and licenses it to 
>>> Developer, who releases "Product A".  This product uses the invention in
>>> Patent 1 legally, because Developer paid for a patent license.  You
>>> license Product A from Developer when you buy your PC and a copy of
>>> Windows.  You have a license to use the Product, but you don't have any
>>> rights to exploit Patent 1 -- just to use the particular implementation
>>> you licensed from Developer.
>>>
>>> Let's say someone else uses the invention in Patent 1 in Product B, but
>>> he doesn't obtain a patent license.  If you use Product B, you are at
>>> some risk, because Product B infringes Inventor's patent rights.  You
>>> might get away with it for a while, if Inventor doesn't protect his
>>> invention, or just doesn't notice that Product B came out.  But you're
>>> exposed nonetheless.
>> Take a slightly different approach here.  Suppose instead of replacing 
>> product A with product B, you make a small modification to product A. Do 
>> you have the right to do that and still use it? 
> 
> Nice to see you back, Les.  I always learn a lot from your posts.  This
> time, I agree with you, but you might not agree with yourself by the end
> of things.
> 
> If you have the right to modify Product A, then I think I agree with
> you, you can modify it as you wish.  If Product A in practice is a
> closed-source application, you can't modify it, though.  So the right to
> modify the software doesn't buy you anything.
> 
> If you obtain Product B that implements some patented process from
> someone who does not have a patent license, then you should not use it.
> Even if the author gives you the right to modify his source code, he
> does not have the right to use the patented process in the software he's
> distributing to you.  He owns his code, to be sure, but he doesn't own
> the process.  That's owned by the patent holder, who didn't get paid.
> 
> If the process isn't patentable where he lives, he's free to give the
> software to people there, and to give you different software that
> doesn't rely on the patented process.  
> 
> There are a lot of wrinkles here.  What if the author doesn't know that
> you got the software?  What if you got the software from someone else
> who lives where the author does?  What if the Product B software doesn't
> really implement the patented process?  What if you didn't know that the
> process was patented in the first place?  You need an attorney for these
> questions. 
> 
> Whether you've licensed some other software that uses the patented
> process has no bearing.  You're still free to use it, but you chose not
> to.  
> 
> Here's another way to look at it.  If I buy a car with anti-lock brakes,
> I get to use that patented technology. I can disassemble the ABS module
> if I want and try to make my own module (the right-to-modify point).
> But I can't get anti-lock brakes on my next car for free; nor can I
> demand free ABS on a Chrysler just because my Ford ABS module is sitting
> on the shelf.
> 
> I always worry that I won't make the point I intend, or maybe offend
> someone in doing it.  Does that help you to see my point?

I don't think this point is clear at all.  This is software, remember, 
just a collection of bits and I'm introducing the modifications myself. 
Suppose I rearrange a few of the bits in program A as my own 
modification, but keeping all the 1's and 0's that used to be there. 
Suppose I keep rearranging them until they look just like program B 
which might be something I developed myself or it might be very close or 
identical to something someone else has done and published.  At what 
point do I stop having the right to use the process permitted by those 
original bits that I still own.  Now it becomes a question of whether I 
have the right to use the parts of that paid-for Ford ABS if I bolt them 
onto a Chrysler myself.

-- 
   Les Mikesell
     lesmikesell at gmail.com