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LWN on the Patent Encumbrence of SELinux
Anonymous Coward writes "LWN has a story about patents in SELinux. The article says: "Much of the actual work in the implementation of SELinux was done by Secure Computing Corporation (SCC). SCC, in its implementation of SELinux, used a technology that it calls type enforcement. As it turns out, SCC has a patent on this technology." Sigh.
From clause 7 at http://www.gnu.org/copyleft/gpl.html
"If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program."
I think that this also falls under the class of submarine patents. Either way, if I'm right in my conclusion, they can't do anything about it - you can't "unlicense" a GPL license; and it's non-exclusive, so anybody that has it can keep it going even after you stop offering it...
Summary: Chill out in the walk-in freezer!
SIG: HUP
You should read the GPL. In the introduction, it states: "We wish to avoid the danger that redistributors of a free program will individually obtain patent licenses, in effect making the program proprietary. To prevent this, we have made it clear that any patent must be licensed for everyone's free use or not licensed at all." For the details, you should check sections 7 and 8 of the GPL.
Let's put this in a different way: if a company distributes some code for which they own a patent under the GPL, then the only way for them to comply with section 7 of the GPL is to allow royalty-free usage, redistribution and modification of the code. Otherwise, they would not be allowed to distribute the code under the GPL. They would have to stop distributing it, or change the license.
-Raphaël
I'll post the relevant section here:
The situation that the FSF had in mind was a company taking GPL code, then injecting patented code in a attempt to de-GPL it and make it proprietary. The protection provided by copyright is the leverage that enforces this.
What they didn't apparently consider was a patent owner voluntarily providing code (that they have the copyright to) under the GPL license. However, I think (I hope) the license is clear enough that if the code is GPL, it can't be retracted (even by the copyright holder) or restricted by patents.
IANAL, but I bet this is giving some FSF lawyers pause to consider whether they need an explicit clause in the GPL to cover this.
If you were blocking sigs, you wouldn't have to read this.
- how are those patents going to benefit the companies that filed them ? It's mainly a closed-source word out there, how are they to prove that a competitor used the same technology in a closed-source product ?
- it does not appear to harm the free software community for the moment, but what later ? What if those components are no longer distributed under a free license ? SE Linux raises the problem with the explicit mention being removed from their pages, as mentionned by LWN.
- isn't it just a problem with the US patent office, who are overloaded with work, who do not always check the validity of a patent with regards to prior art, and the US legal system which allows lawyers of big companies to blackmail and racket smaller companies on unfair patent claims ? See this site which refers to a previous
/. post on the subject. I personnaly think that kind of situation is an incentive for RedHat and SELinux to spend big bucks on patents.
I clearly don't see the free software community benefiting from this situation. Individual programmers will have to face both the possiblity that a rogue company sues them unfairly for patent infringement, and the possibility that another company, owning patents on parts of free software, changes its attitude towards the GPL and decides to un-GPL their code and go proprietary.Say "thanks" to US lawyers and Powers That Be for allowing that nightmare to come true.
In Soviet Russia, our new overlords are belong to all your base.
Yeah, it's a patent-law versus GPL thing, but (at least to me) it appears to be cut-and-dry. Linux existed, with its use of the (L)GPL as its license. SCC held their patent and chose to modify Linux to make use of their technology. They are a 'consumer' of Linux, and Linux is NOT a consumer of their technology. They are, before any consideration of patent law is considered, required to comply with the GPL in regards to adding anything to Linux.
So they (we assume consciously) chose to work their code into Linux and redistribute it. This action implies intent to comply with the GPL. Considering the specific requirements of the GPL in regards to patents (must be royalty-free for ALL users who can receive the distribution), the only logical conclusion to draw is that SCC aggreed at the moment of distribution to permit use of their patent within Linux as royalty-free to the public (which includes individuals, governments, deities, and businesses alike).
it's a fairly a->b->c sort of thing. The only thing assumed is that SCC had the conscious intent to comply with the GPL... If they never intended to comply with the GPL, then this whole point is moot and they are in violation of the license! This certainly isn't a rocket-science concept to understand.
So what are our outcomes? (1) SCC provides royalty-free use of their patent in SELinux, (2) SCC withdraws their code, (3) SCC tries to play hardball by requiring licensing while violating the GPL and tries to fight the GPL in court. The likelihood of 3 doesn't seem too likely.
.... um, i lost you after "0110100001101001".
All it would take is one killer app license under the OPL to create public demand. Then if anyone wanted to duplicate that functionality, the OPL would allow it -- BUT the corresponding GPL (or the OPL itself if properly worded) would require developers to release source code with their implementation.
I submit that this would have an even GREATER impact than the GPL. Developers would be free to try widely disparate approaches to achieving the patented functionality. The different algorithms and approaches could be compared with the best methods prevailing because the best code would be that actually used. Think of the contribution to computer science possible with widespread comparison of designs. I think the industry-wide effects would result in much higher-quality code in general.
Don't tell me that Open Source cannot get patents. If someone bothered to look, they could find a patent attorney who would be thrilled to get a patent for Open Source code as long as someone paid the filing fees (for small entities, about $350). I am a registered patent attorney and I would be thrilled to prosecute one of these applications. I'm sure I am not alone.
Laws affecting technology will always be bad until enough techies become lawyers.
oever asks:
Where is the problem exactly with patents in GPL-ed software?
Worst case scenario: a patent could make it illegal to use a particular software package, even one licensed under the GPL. Depending on patent laws, it could also interfere with redistributing GPL code.
If a company has a patent on a software technique and writes and distributes GPL code to implement it, anybody can use this code. Or can't they?
Potentially not. The GPL is a copyright license, it gives people the right to distribute the software. It is not a patent license, it does not grant people the right to use any patents.
A patent holder who is friendly to the Free software community will provide, seperately from the GPL, a license permitting anyone to use, for free, the patent within the context of software licensed under a Free Software license. The DFSG makes a good set of guidelines for this purpose. Generally such licenses are void if you sue the patent holder over their use of your own patents. These are called Royalty-Free patents (or RF Patents). Some companies, whose patents are purely defensive, give a royalty-free license to everyone who isn't suing them.
To my knowledge, SCC has not done this for the patents connected to SELinux. This is why people are upset.
And can people modify that code? I guess one cannot write new GPL-ed code that does the same thing.
You can modify existing code or write new code if and only if you do so within the bounds of the above discussed patent licenses.
Or can a company charge you for using the GPL-ed code with patents?
Yes they can. Let's say the ACME Software company comes up with a great streaming video codec, they post the specifications online and encourage people to use it. A group of people take those specifications and make programs to make, broadcast and view ACME video, the program gets distributed widely. Two years later we find that prior to publishing the spec, ACME quietly filed for a patent, and it has come through.
My understanding is that ACME would have the legal right (though not the moral right, IMHO) to charge everyone who uses that software, or who has used it in the two year period while the patent is pending, for each time they use the software, or distribute files that were made with that software. This scenario is not that different from what Unisys did with LZW encryption, and GIF files.
Note: I am not a lawyer, none of the above should be construed as legal advice.
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Open mind, insert foot.
The outcome to watch for is (4) SCC blows away their license to distribute Linux and then shuts down all Linux distribution that involves their patented stuff, until the patented stuff is completely removed. The reason to watch for this is as follows: while destroying your own product (a Linux distribution) is bad business, there is enough outside interest in doing great damage to Linux that it WILL become rewarding to do so, to the extent that the patent becomes indispensable. If the patent becomes completely indispensable to Linux, the value of buying out or subverting the patent holder becomes astronomical to a competitor- some of whom claim to have rather a lot of money.
This holds for ANY patent being licensed into Free software, not just the SCC.