Amendments to GPLv3 so that it is relevant to the copyright versus patent debate in Europe and elsewhere
FFII proposes to make the GPLv3[0] terminology even further denationalised by replacing the word "software patent" and the contexts where it is used with a more generic terminology. There are many reasons for this, some of them are outlined below.
The present preamble reads:
Finally, every program is threatened constantly by software patents. States should not allow patents to restrict development and use of software on general-purpose computers, but in places where they do,
FFII would like to propose:
Finally, every program is threatened constantly by patents in countries where patent law practice is allowed to interfere with the public domain and/or the domain of copyright protection.
To justify the concept of "interfere" we would like to refer to the principle of "containment" mentioned in the hallmark German patent court verdict Dispositionsprogramm [1]:
- "The system of German industrial property and copyright protection is however founded upon the basic assumption that for specific kinds of mental achievements different specially adapted protection regulations are in force, and that overlap between these different protection rights need to be excluded as far as possible."
We believe other property systems in the world are founded on similar assumptions. One neat example of this principle being explicitly expressed is the European design protection law which reads[2]:
- "(b) 'product` means any industrial or handicraft item, including inter alia parts intended to be assembled into a complex product, packaging, get-up, graphic symbols and typographic typefaces, but excluding computer programs;"
We also would like to point out that the European Patent Convention is designed in a similar way. A straight forward reading does not give any particular meaning to the (in)famous intonatory particle "as such"[3], but reads[4]:
- "The following in particular shall not be regarded as inventions [...] programs for computers"
To acknowledge legislators' universal ambition to contain different exclusion regimes within well defined borders is uncontroversial. Here we have shown e.g. that computer programs are not products in the sense of design protection law, and programs for computers are not inventions in the sense of patent law. It is reasonable to assume that this is still the default legal framework in most jurisdictions around the world. Therefore the GPLv3 can, and should, adress the "software patent problem" on this level, and not on the lower level of a particular instance of breach of the containment principle.
Additional support for the proposed change comes from US case law. In the conclusion of the Altai case the Court says[5]:
- "we seek to insure two things: (1) that programmers may receive appropriate copyright protection for innovative utilitarian works containing expression; and (2) that non-protectable technical expression remains in the public domain for others to use freely as building blocks in their own work."
Hence, if FSF is saying that FSF does not recognize any patents in their commons, FSF is right. At the heart of the matter is who can claim exclusion rights to developers' and authors' achievements, and which regime can sustain such a claim in court. Dispositionsprogramm says "overlap [...] needs to be excluded", and Altai "seek to insure [...] the public domain for others to use freely".
Following from above, FFII also suggests to not use the concept "software patent" in the following paragraph of GPLv3:
- b. Additional Requirements.
- ..this License:
5) terms that wholly or partially terminate, or allow termination of, permission for use of the material they cover, for a user who files a software patent lawsuit (that is, a lawsuit alleging that some software infringes a patent) not filed in retaliation or defense against the earlier filing of another software patent lawsuit, or in which the allegedly infringing software includes some of the covered material, possibly in combination with other software; or
FFII suggests:
5) terms that wholly or partially terminate, or allow termination of, permission for use of the material the terms cover, for a user who files a patent lawsuit not filed in retaliation or defense against the earlier filing of another patent lawsuit, in which the alleged patent infringement interferes with the full exercise of the legal rights granted by this License; or
FFII would like to avoid the licence contains implicit definitions of what a software patent lawsuit is by simplifying the text and restate the solution in terms of the (original) problem as described above.
The European software patents directive debate has taught us words can have very different meanings in different contexts, e.g. the EPO president claimed the EPO does not grant software patents as such, and many MEPs claimed the swpat directive did not allow patents on pure software. So, while the term "software patents" may seem clear to some readers, it is not clear to others. Even programmers who have patents that other programmers say are software patents sometimes say they are not "software patents" but rather "hardware patents".
An implicit definition of what a "software patent lawsuit" is might also pre-empt interpretations of what "essential patent claims" might mean in a real court case.
[0] GPL - Discussion Draft 2 of Version 3, 27 July 2006 http://gplv3.fsf.org/comments/gplv3-draft-2.html
[1] Dispositionsprogramm http://swpat.ffii.org/papers/bgh-dispo76/index.en.html
[2] European design protection law http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31998L0071:EN:HTML
[3] Meaning of "as such" http://wiki.ffii.org/AssuchEn
[4] European Patent Convention art 52.2 http://www.european-patent-office.org/legal/epc/e/ar52.html
[5] Altai case http://digital-law-online.info/cases/23PQ2D1241.htm
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