Can PatentLeft Save Us?
News Analysis
A hack on patent law, based on copyleft, could render patents useless.
Opinion
Can PatentLeft Save Us?
The word "copyleft" arises from a clever hack by Richard Stallman, who used the laws relating to copyright – a statutory device to incent creativity by granting limited monopolies to creators – to create a world where creators are incented to share instead of monopolize their work.
Since the Berne Convention, a creative work is the automatic sole property of its creator, and the only way others can use it in any way until the monopoly expires is with the express permission of the creator of the work, who is said to hold the copyright. Copyleft grants everyone receiving the work an unlimited license to use, improve, and share it, but only on the condition they grant the same conditional rights to every recipient. Copyleft thus makes more and more works freely usable as more and more people improve them.
Could we do the same thing to subvert patent law? It seems that's at least part of the motivation behind the use of a controversial combination of the BSD open source copyright license and a broad patent grant by Facebook. A few years ago, they silently standardized on releasing all their open source projects – including popular codebases like the RocksDB storage engine and the React.js user interface framework – under the venerable three-clause BSD license supplemented by a unilateral grant to any of Facebook's patents necessary to use the software.
While that initially sounds uncontroversial and generous, the patent grant also included an aggressive termination clause that removed any grant of patent rights in the event of patent litigation. That too may sound unremarkable – after all, the Apache and Mozilla licenses include termination provisions, as do most other modern open source licenses – but Facebook's version goes much further than any other.
The termination clause in the Apache license also removes patent grants in the event a company initiates patent litigation against the project, but the trigger for termination is limited to the code at hand – you have to sue an Apache contributor over the Apache project, and the patent grants you lose are those related to the project. Losing a license would mean the company you are attacking could then countersue for the infringement of the patents that were previously licensed to you. That sounds like a fair deal.
By contrast, Facebook's termination clause is triggered by patent action of any nature, related or unrelated to the project at hand (it originally triggered even on self-defensive patent litigation where Facebook was the aggressor, but that was removed in a revision a while back). It's also triggered not just by action against Facebook, but also action against its subsidiaries and partners, and also by action against members of the open source community working on the project at hand. It's not just you that can trigger the clause – any of your subsidiaries and agents can also make it happen.
So imagine you're a European company and your American distributor takes a patent potshot at another company who is intentionally using your distributor's patents without a license. If they happen to be a React.js community member or a Facebook partner, you will lose all your patent grants from Facebook, even though neither you nor they are involved in the action. You'll then risk patent litigation by Facebook.
Facebook defends their license combo by saying they have a need and a right to protect themselves from patents. They have little to say about the network effects of the license combo, but have clearly indicated they are an intentional byproduct. Facebook wants to use their massive presence in the market to chill use of patents in the whole market. Their competitors loudly say that's a bad thing. That's led to their employees at the Apache Software Foundation demonizing Facebook's license and banning it from use on any Apache project.
But what would happen if they were to generalize their license combo and submit it to OSI for approval as a new license? Then we could all release software that, as it spreads, makes the granting of a patent license conditional on not using patents out of a fear of some remote networked relationship in the community bringing down the fiery wrath of a giant corporation. I'd want to call such a license "PatentLeft" – a hack on patent law that renders patents useless in practice. Maybe that would be a good thing?
Buy this article as PDF
(incl. VAT)
Buy Linux Magazine
Subscribe to our Linux Newsletters
Find Linux and Open Source Jobs
Subscribe to our ADMIN Newsletters
Support Our Work
Linux Magazine content is made possible with support from readers like you. Please consider contributing when you’ve found an article to be beneficial.
News
-
Canonical Bumps LTS Support to 12 years
If you're worried that your Ubuntu LTS release won't be supported long enough to last, Canonical has a surprise for you in the form of 12 years of security coverage.
-
Fedora 40 Beta Released Soon
With the official release of Fedora 40 coming in April, it's almost time to download the beta and see what's new.
-
New Pentesting Distribution to Compete with Kali Linux
SnoopGod is now available for your testing needs
-
Juno Computers Launches Another Linux Laptop
If you're looking for a powerhouse laptop that runs Ubuntu, the Juno Computers Neptune 17 v6 should be on your radar.
-
ZorinOS 17.1 Released, Includes Improved Windows App Support
If you need or desire to run Windows applications on Linux, there's one distribution intent on making that easier for you and its new release further improves that feature.
-
Linux Market Share Surpasses 4% for the First Time
Look out Windows and macOS, Linux is on the rise and has even topped ChromeOS to become the fourth most widely used OS around the globe.
-
KDE’s Plasma 6 Officially Available
KDE’s Plasma 6.0 "Megarelease" has happened, and it's brimming with new features, polish, and performance.
-
Latest Version of Tails Unleashed
Tails 6.0 is based on Debian 12 and includes GNOME 43.
-
KDE Announces New Slimbook V with Plenty of Power and KDE’s Plasma 6
If you're a fan of KDE Plasma, you'll be thrilled to hear they've announced a new Slimbook with an AMD CPU and the latest version of KDE Plasma desktop.
-
Monthly Sponsorship Includes Early Access to elementary OS 8
If you want to get a glimpse of what's in the pipeline for elementary OS 8, just set up a monthly sponsorship to help fund its continued existence.