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To read comments to this article, go here
Larry Rosen Responds to Your Comments
Friday, September 15 2006 @ 10:26 AM EDT

Larry Rosen has read all your comments to the article about the International Characters business model proposal, and he thanks you very much for letting him pick your brains. In true Groklaw fashion, he'd like to respond now to the comments you left.


Dear Groklaw fans:

I want to thank everyone who took the time to comment on IC's proposed business model. Most of what you said is not entirely unexpected. That means we have to explain ourselves better, and partly that means we have to do a better job of convincing you that "patent" need not be a dirty word for free and open source software. I've been involved with open source for many years, and I knew ahead of time that such things can cause some people to foam at the mouth. Thanks to most of you for not foaming.

Consider for a moment: It is an accident of history and a decision of Congress that made software copyrightable, and another accident of history and a decision of Richard Stallman that it became licensable under the GPL. When the GPL and other early free and open source licenses were written, copyright was all that mattered. At that time, we needed a license to take copyrighted works and turn them into copyleft works, to guarantee that they are and remain free software. That license and other open source licenses work just fine for copyrighted works, and I am confident the new GPLv3, however it turns out, will do even better.

Orthogonal to copyrights is another form of intellectual property, patents. It is also an accident of history and a decision of Congress that software, at least in the U.S., is patentable. Even GPLv3 now recognizes the existence of patents; the FSF's current draft contains a patent covenant also. There is no modern free or open source license that dares avoid patents.

International Characters is proposing a different form of covenant, one not tied to specific copyrighted software, but authorizing *all* of our patent claims for embodiment in *any* free and open source software. We have larger goals in mind, however, than the GPL and other open source licenses. We seek to encourage three forms of technology knowledge development, including (as one of you noted derisively), through the use of patents to secure exclusive rights and thereby "promote the progress of science and useful arts." (U.S. Const., Art. I § 8.) Congress has authorized us to take advantage of patents, and we intend to do so in a way that promotes free software.

Whether through GPLv3 or the IC Covenant, free software ultimately runs up against that set of orthogonal patent rights, including authority to control the "making, use, sale, offer for sale, importation, licensing or distribution" of software that embodies patents. We must learn to live with that condition for now, because Congress has decided.

And so International Characters decided that it is time to come up with an appropriate copyleft for patents (terrible phrase!), one that solves a problem that copyleft licenses handle awkwardly through complex derivative work and source code provisions. Instead of that, and in order to support software research and development at universities and other research institutions that fund our work, certain types of commercial uses must pay for the use of our patented technology. No longer should we have to stretch to answer the question, "How do you make money by giving it away." The answer is: "We give it away for free and open source software, but we don't give it away for commercial uses involving proprietary software, hardware, or combinations of hardware and software. Everyone else pays."

Some open source projects may not want to implement our patents because it will mean that our patent covenant encumbers their software. But our covenant permits everyone else to take that free and open source software and add our patented technology to it if there's value to doing so. Experimentation and research are free. If the resulting modified software embodies our patents, our Covenant applies to it—but so does the original open source license! If the modified software remains open source under its original license, we'll be nowhere to be seen. But we reserve the right to collect royalties if that software is combined with hardware in a commercial product or in a secretly-modified application.

I'll try to respond to other comments in this Groklaw article inline as time permits. But I wanted to stand up for what we're trying to do, and not leave the impression that we need our mouths washed with soap just because we spoke out about a way to make patents work for open source.


Lawrence Rosen

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