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To read comments to this article, go here
Software Freedom Law Center Says Google's Draft VP8 Cross License is Compatible With FOSS Licensing ~pj Updated
Wednesday, May 29 2013 @ 04:43 PM EDT

This is important news, because there have been several articles claiming the opposite, and it's good to be precise and careful. It's why I waited until the Software Freedom Law Center could tell us whether Google's VP8 patent cross-license is or is not compatible with FOSS licensing.

The short answer is, it is:

SFLC, like its client the Free Software Foundation, believes that software standing alone should not be patentable subject matter. We join skeptics of the VP8 license and the broader FOSS community in rejecting software patents in all forms, and we will continue to oppose them. But until software patents no longer threaten FOSS, we will look for every opportunity to preserve community development from their destructive effects. The VP8 cross-license provides such an opportunity, in an area of particularly active patenting. It's not perfect, but no other modern web video format provides nearly the same degree of protection for FOSS implementations.
Surprised? Me too. But as I've often told you, the law is complex, and if we are not lawyers, we are not lawyers, and as a result sometimes elements of the complexity can fly over our heads. That's the bottom line for all of us non-lawyers. When in doubt, I ask one to be sure, because guessing can lead to problems. It was right to consider the question, by the way, but now we know the answer.

We can put this episode in the same, ever-growing pile of materials where folks have leaped to a negative conclusion about Google, without basis, as it turns out. Google went to a lot of effort and expense to protect the FOSS community, and look at its reward -- undeserved criticism. FOSSPatents got this totally wrong, of course. If someone had forced me to write about this before today, I would have gotten it wrong too, to be honest (just not *that* wrong), so I'm not pointing fingers, but I am correcting the record. It's official. Google's draft cross license is compatible with FOSS licensing.

I'll reproduce Aaron Williamson's article in full, which I can do because it's Creative Commons licensed (BY-SA 3.0), so you can parse it all out for yourself. Williamson is Senior Staff Counsel at the Software Freedom Law Center.

Update: Now FOSSPatents is claiming that this represents a ringing endorsement of Microsoft's patent licensing deals of Android and Linux. Trust me when I tell you without fear of contradiction that this is not the case.
http://www.fosspatents.com/2013/05/software-freedom-law-center-effectively.html

In fact, that's ridiculous. Microsoft is acting like SCO, hoping to make money from other people's work on Linux. And like SCO, it heads for the deep pockets, and its dream is, obviously -- as articulated by FOSSPatents over and over -- to get Google to pay them off to go away and leave Linux and Android companies alone. I don't speak for Google, but I hope Google never, ever, ever does that.

Bullies should not be rewarded. When you wimp out, they get worse, not better. And I suggest you look at what Barnes & Noble told the world about the quality, or lack thereof, of the "trivial" patents Microsoft presented to Barnes & Noble, when it wanted Barnes & Noble to pay the Linux tax for its Nooks. Barnes & Noble accused Microsoft of misusing patents in an anticompetitive scheme against Linux. Duh.

Perhaps that is why Microsoft prefers to do its bullying in the dark. You may have noticed that Microsoft bought a chunk of Barnes & Noble to settle the litigation and the ITC matter, after there was a preliminary report from an ITC lawyer was that Barnes & Noble hadn't infringed the stupid Microsoft patents in his view. He didn't phrase it like that, but that's how I viewed it.

So, Barnes & Noble sold out for money. I hope Google never does. They have enough money. How's the Nook doing since, by the way? Does partnering with Microsoft ever work out for anyone but Microsoft? Have you noticed how Linux vendors stop selling Linux after partnering with Microsoft, a la Nokia?

Microsoft doesn't deserve to be paid for patents that are not infringed or for trivial software patents that shouldn't have issued in the first place. They have a lot of nerve to even try for it. An anticompetitive scheme against Linux. That is the goal. Barnes & Noble said it, but then it acted like it didn't know it. Or probably it didn't really care about Linux, I suppose, but Google does. It built its business on Linux, and Android runs on it.

No one admires a bully. Or wimps who sell out to them.

***********************

VP8 cross-license draft compatible with FOSS licensing
By Aaron Williamson | May 29, 2013

Google and MPEG-LA recently disclosed a draft cross-license under which patents related to the VP8 video compression format would be licensed to the general public. SFLC reviewed these terms and considered some criticisms that have arisen in the free software community. Our opinion expressed here is ours alone, and does not necessarily reflect the position of any client of SFLC.1

Compatibility with Open Source and Free Software Definitions

It has been suggested that the proposed license is incompatible with Open Source Initiative's Open Source Definition and the Free Software Foundation's Free Software Definition, the documents that define which terms are appropriate in free and open source copyright licenses. But the VP8 license is not a FOSS license,2 and these definitions' criteria apply only indirectly to third-party patent licenses.

Critics focus on two provisions in particular: §2, which requires would-be licensees to explicitly accept the license terms, and §3, which limits the license's "field of use" to implementations of VP8. Both would be unacceptable in a FOSS copyright license on software, but in the context of this particular free-standing third-party patent license, neither provision interferes with FOSS licensing or the freedoms it protects.

Should the developers of a FOSS VP8 implementation accept this license, they would not be required to pass on any restrictions limiting users' rights to copy, modify, and redistribute free programs. Users would be neither required to accept the patent license nor restricted from adding new capabilities to the software. They would have the same rights as they would if the developers had never accepted the patent license: those granted by the software's FOSS license.

If this patent license interfered with the freedoms guaranteed to users by FOSS licenses, it would be incompatible with the OSD and FSD. Because the patent license does not restrict those freedoms, but rather affords some new, limited protections to users and developers within the field of use, it improves on the current situation. Without this license, the patent holders would be in a position to threaten those users and developers as well as others.

The acceptance requirement: an unacceptable burden?

A related objection to the acceptance requirement is that it is a burden for projects with no collective legal identity, because each developer must accept the license personally to be covered (as must each downstream licensee). This inconvenience is largely mitigated by §4 of the draft license, which provides a full release from past infringement upon acceptance. This means that a developer of a VP8 implementation can accept the license at any time—including after being threatened or even sued by a VP8 licensor—and acquire a retroactive release. This feature makes the license functionally identical to a covenant not to sue.

There is some valid concern that Google or MPEG-LA could subsequently change or withdraw the offer of retroactive release. The license could be improved by a promise not to do so. But the law doesn't reward manipulation; if the retroactive release appears in the final, published license, Google and MPEG-LA may well be estopped from subsequently seeking to enjoin developers or distributors who have relied on it in good faith.

Conclusion

SFLC, like its client the Free Software Foundation, believes that software standing alone should not be patentable subject matter. We join skeptics of the VP8 license and the broader FOSS community in rejecting software patents in all forms, and we will continue to oppose them. But until software patents no longer threaten FOSS, we will look for every opportunity to preserve community development from their destructive effects. The VP8 cross-license provides such an opportunity, in an area of particularly active patenting. It's not perfect, but no other modern web video format provides nearly the same degree of protection for FOSS implementations.

______

1 SFLC receives no financial support from Google or MPEG-LA.

2 The code for Google's VP8 implementation is licensed under a separate 3-clause BSD license approved by the FSF as a free software license and by OSI as an open source license.


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