[no subject]

["Lawrence Rosen" <lrosen at rosenlaw.com>]

The field-of-use restriction is annoying, of course, but I don't think it's 
actually fatal in this case.  The GPL does indeed prohibit "you"; that is, 
the GPL licensee, from imposing futher restrictions on recipients exercise 
of rights granted within the GPL.  However, it does not prevent such 
restrictions from already existing; the GPL does not prevent you from 
adding support to GPL'd software for patented crypto technology and then 
distributing the result, provided the patent license does not require you 
do place additional restrictions on the activities of people you distribute 
to.  In fact, the most common problem I've heard of with GPL 
incompatibility as it relates to patents is that the GPL prevents adding a 
restriction that requires preparers of derivative works to license any 
relevant IPR that they own.  The text you referenced in the Mozilla and 
Apache licenses are examples of such requirements, and make those licenses 
GPL-incompatible.

The Mozilla license covers this explicitly, again in the text you quote: 
"The Initial Developer hereby grants... subject to third party intellectual 
property claims".  Of course, that's not really the important part, since 
most people are not the Initial Developer.  What you really want is section 
2.2, "Subject to third party intellectual property claims, each Contributor 
hereby grants...".  In either case, what is going on here is that anyone 
who contributes code to software covered by that license must grant 
licenses to any relevant IPR that he owns; it explicitly excludes IPR owned 
by someone else.  Thus, it is possible to include patented crypto in 
software covered by the Mozilla license, even if the patent holder requires 
every user to pay a large fee to use the patented technology.

The section you refer to from the Apache license is similar - it consists 
of a license grant by each contributor of rights held _by that 
contributor_.  The grant does not cover IPR not held by the distributor.

In any case, the text you quote from the Mozilla and Apache licenses has 
nothing to do with the argument you are trying to make; it has no effect on 
the ability to create and distribute software under these licenses which 
implements technology patented by someone other than the contributor.  What 
makes these clauses problematic is that they cause the licenses that 
contain them to be GPL-incompatible (but not necessarily non-free).


-- Jeff

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