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Re: GPLv3 comedy unfolding -- InformationWeek: "Pick Your Open Source Po


From: Lee Hollaar
Subject: Re: GPLv3 comedy unfolding -- InformationWeek: "Pick Your Open Source Poison: Microsoft's Patent Claims Or GPLv3"
Date: Sat, 9 Jun 2007 07:42:13 -0600 (MDT)

In article <address@hidden> address@hidden writes:
>http://www.informationweek.com/showArticle.jhtml?articleID=199902779
> Underscoring the user community's clout, Robert J.
>Carey, CIO of the Navy, last week issued a memo mandating that open
>source be considered in all Navy software acquisitions. Notably, Carey
>expressed no interest in whether open source vendors have Microsoft's
>patent protection or which version of the GPL should apply. 

The Navy is hardly in the same position as other users.  They don't
have to worry about a patent owner getting an injunction stopping them
or their contractors from infringing a patent.

That's because any patent infringement by the United States government
or its contractors is under the exclusive jurisdiction of the Court of
Federal Claims (see 28 U.S.C 1498).  And that court does not have the
authority to issue injunctions, only award damages to compensate the
patent owner for the government's use of the patented technology.  That's
why an injunction in the Blackberry case would have shut down regular
users, but not federal government users.

So, without Microsoft's patent protection, the worst that could happen
to the Navy is that they would have to pay Microsoft for any infringement
by it or its contractors.

Note, too, that any enhancements to open source software by Navy employees
(but not Navy contractors) would also be in the public domain because of
17 U.S.C. 105.  So it can be used by anybody without regard to the GPL
(any version) because it is in the public domain.

In the 108th Congress, there was an effort (H.R. 2613) to extend that
to works produced under government contracts.  "Copyright protection
under this title is not available for any work produced pursuant to
scientific research substantially funded by the Federal Government ..."
The idea behind the legislation was to make medical research reports
more generally available.

It is interesting to ponder what that might do to GPLed software written
in universities under federal grants and contracts.  But to the best of
my knowledge, there was no recognition of that problem by any of the
"free" software people.


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