[Harmony-Review] Feedback

[Scott James Remnant]

Argh, hit send instead of Save Draft. Please attach the remainder of this
mail to my previous one.


We'll take it as read that the GPLv2 transfers the right to distribute and
modify the source to Google, provided that the distribution is also under
the terms of the GPLv2 with source. I think those provisions of the GPLv2
are well understood.

What about it's patent provisions? Is Google as equally protected as
Canonical when it comes to the patents contributing companies may hold on
Upstart?
*?*

*7.** If, as a consequence of a court judgment or allegation of patent
infringement or for any other reason (not limited to patent issues),
conditions are imposed on you (whether by court order, agreement or
otherwise) that contradict the conditions of this License, they do not
excuse you from the conditions of this License. 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.*

*If any portion of this section is held invalid or unenforceable under any
particular circumstance, the balance of the section is intended to apply and
the section as a whole is intended to apply in other circumstances.*

*It is not the purpose of this section to induce you to infringe any patents
or other property right claims or to contest validity of any such claims;
this section has the sole purpose of protecting the integrity of the free
software distribution system, which is implemented by public license
practices. Many people have made generous contributions to the wide range of
software distributed through that system in reliance on consistent
application of that system; it is up to the author/donor to decide if he or
she is willing to distribute software through any other system and a
licensee cannot impose that choice.*

*This section is intended to make thoroughly clear what is believed to be a
consequence of the rest of this License.*

*8.** If the distribution and/or use of the Program is restricted in certain
countries either by patents or by copyrighted interfaces, the original
copyright holder who places the Program under this License may add an
explicit geographical distribution limitation excluding those countries, so
that distribution is permitted only in or among countries not thus excluded.
In such case, this License incorporates the limitation as if written in the
body of this License.*


That is the GPL's sole provisions on patents.

No license is given to any of the patents licensed to Canonical. Worse, it
states that if you are charged with infringement (or by any other reason)
Canonical can actually prevent you from being able to further distribute
Upstart by imposing terms on those patents.


And that is what leads to the doomsday scenario:

In order to prevent Google from continuing to distribute its products and
projects, Evil Inc acquires Canonical in order to obtain the licenses to the
patents on a core component of those products and projects. As the licensee
it is not covered by Harmony 6.2 (it's not a third party, it has acquired
the first party) so it is free to use those patent licenses to the full
extent permitted by the agreement and law.

The patent license text in Harmony is liberal, and I am told is sufficient
for many jurisdictions to infer a license to litigate for infringement. Even
Canonical has argued that the same text for copyright is sufficient to
litigate for copyright infringment after all, and has championed this as a
key feature of copyright assignment agreements (not requiring the
contributing party to be present)

After acquisition, Evil Inc begins litigation against Google using the
licenses acquired from the contributions to Upstart. Google received no such
license from Canonical for those patents, and thanks to the GPL, Google no
longer has the right to distribute its products and projects.


Scott
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