[Opensim-dev] Violating the GPL by looking (Re: Voice Module)

[Kyle Hamilton]

The GPL is not (as far as I've read) a 'patent license'.  It has no
relationship to patents, except just as much as necessary to
acknowledge that patents exist.

A patent is, as far as I can tell (and bearing in mind that I'm no
lawyer, either), simply a time-limited proprietary claim to an
invention, granted in exchange for the public disclosure of what that
invention entails.  This is not "a program" -- this is "a computer
programmed to do something".

For example, a specific program cannot be patented.  However, "a
computer programmed such that it performs step A, step B, and step C
in sequence" can be patented.  This is an important distinction --
this is how and why Fraunhofer can claim that any MP3 encoder violates
its patent, even when they clearly did not write or have any input
into the LAME MP3 encoder software, nor did any of its former
employees or researchers.  (as an example.)

i.e., a patent-infringing work is a patent infringement whether or not
anyone who ever worked on the original implementation worked on the
infringing work.  Because of this, there's no reason in this case to
make any distinction about who's working on it.

Now, I don't know if Linden has applied for any patents on anything
it's done.  If they have, I don't know if they've chosen to license
those patents only in regard to their own released code and any
modifications to it or in any code that's designed to interoperate
with their system or in sole conjunction with use of their system, or
what.

What it boils down to, though?  This discussion is simply more fear,
uncertainty, and doubt thrown at the viability of the GPL for anything
at all.

Let's look at the different forms of 'intellectual property':

Trade Secret: Only applies if details haven't been publicly discussed
or disclosed.  Since the SL viewer source code has been released, and
discussions of the back-end architecture have occurred publicly, this
entire issue is rendered moot -- there is no secret.
Copyright: Applies to any work created, and any work derived from it
which uses it as an identifiable input.  (My understanding, and again
IANAL, is that 'paraphrasing' a work doesn't create a copyright
violation.)
Patent: Exclusive right to benefit from an invention, in exchange for
public disclosure.  (Thus, you cannot have a 'patented trade secret'
-- the process of patenting requires disclosure, thus there's no
secret.)
Trademark: A name or logo used to identify the originator or
distributor of good or service.  Thus, "Second Life" is likely covered
as a trademark, as it refers to the specific grids that Linden has
created and runs.  "OpenSim" could also be a trademark, along with
"Open Simulator", if someone were to go through the paperwork to
register it.

In this case, it is fairly clear that there is no 'trade secret'.
(There's also no 'noncompete' (since that's only enforceable with a
contract which includes competent parties, consideration, clear
understanding between all parties, and explicit action to become party
to the contract -- such as an employment or contractor relationship).)
 The copyright can't apply to anything that Linden didn't directly
write themselves, and as long as nobody tries to say that they're
Second Life there's no trademark infringement.

The only possible monkeywrench is patent infringement, but I don't
know if any patent filing has actually occurred on anything that
Linden's employees may have invented.  (I can't find any, but that
doesn't mean anything.)

My (non-lawyer, again) opinion?  Y'all need to lighten up.

-Kyle H

On Tue, Mar 18, 2008 at 11:42 PM, dan miller <danbmil99 at yahoo.com> wrote:
> Ok.  I took a deep breath.  I watched the Obama speech, and that inspired me
>  to be brutally honest with myself, and note an objection to my own
>  impassioned argument.
>
>  While I think it's a completely bogus state of affairs, I can see one tiny
>  glimmer of logic in the "you can't look at SL viewer and work on opensim"
>  argument.  I have a counter-argument for my counter-argument, but that's
>  later.
>
>  Reading the GPL as carefully as I can (recalling IANAL), the phrase that
>  gives me pause is this:
>
>  "Finally, any free program is threatened constantly by software patents. 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."
>
>  by "everyone's free use", one could interpret it to mean that the *patent
>  rights* (not the copyright) must remain under the GPL.  So the perfect storm
>  scenario that our 'high-priced attorneys' may be considering is this:
>
>  * Programmer putzes around with GPL'd viewer
>
>  * Programmer works on opensim, but is very careful not to copy any code.  A
>  code review confirms that there is no obvious code-level contamination
>
>  * Linden Labs sues people because their *patent rights*, which were
>  implicitly released under GPL, have been indirectly incorporated into a
>  BSD-licensed project through Programmer's "inevitable disclosure", residual
>  IP etc.
>
>  So the fear of big companies is not that the code will be copied, but that
>  the underlying IP will infect opensim.  They are applying the same logic
>  they would apply to the case of a programmer who worked at Linden Labs, had
>  the viewer never been released to the public.
>
>  I can't recall my counter-counter-argument at the moment, but I'm sure it
>  was brilliant.
>
>  -danx0r
>
>
>
>  --- dan miller <danbmil99 at yahoo.com> wrote:
>
>  > >
>  > > The reason why we don't look at the client code is simply because of
>  > fears
>  > > of a possible lawsuit by Linden Labs or any other GPL contributor, again
>  > > if you haven't Googled "inevitable disclosure" yet please do so.
>  >
>  > I've done so, and confirmed my suspicions: inevitable disclosure is a
>  > doctrine that applies to trade secrets and employment.  I can find no
>  > references to its application to the case at hand.  IANAL, but YAINL too
>  > (You All Is Not Lawyers).
>  >
>  > I'm tired of this argument, and I don't know what "high-priced IP
>  > attorneys"
>  > gave this advice, but it's patently ridiculous.  Copyright is
>  > fundamentally
>  > different from trade secrets -- it's OPEN SOURCE for *** sake.  ANYONE CAN
>  > CHECK TO SEE IF THE CODE WAS COPIED.  There is absolutely no provision in
>  > the GPL that keeps IDEAS locked into the license; it is explicitly,
>  > specifically, and exclusively about the actual code, which is right there
>  > for anyone to read.  In fact, GPL2 has a specific prohibition *AGAINST*
>  > the
>  > exact sort of lawsuit people are apparently afraid of.  The only thing
>  > that
>  > matters is whether the code is the same, not who had access to it.
>  >
>  > However several of the core developers have convinced themselves and/or
>  > been
>  > convinced that this is a reasonable precaution, and it seems hopeless to
>  > kick the dead horse.
>  >
>  >
>
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