on 7/7/2007 11:32 AM, Les Mikesell wrote: > Erik Hemdal wrote: >>> From: Les Mikesell <lesmikesell@xxxxxxxxx> >> . . . . >>> Erik Hemdal wrote: >>>> . . . >>>>>>> I think there would be an interesting legal argument that nearly all >>>>>>> potential users have already paid the relevant patent royalties >>>>>>> indirectly in the form of drivers and other software provided by the >> . . . . >>>> I think you're wise. Patent licenses cover the processes, but software >>>> licenses cover the individual implementations that might use patented >>>> inventions. So you or I would probably be toast using that argument. >>>> >>>> Inventor patents an invention under Patent 1 and licenses it to >>>> Developer, who releases "Product A". This product uses the invention in >>>> Patent 1 legally, because Developer paid for a patent license. You >>>> license Product A from Developer when you buy your PC and a copy of >>>> Windows. You have a license to use the Product, but you don't have any >>>> rights to exploit Patent 1 -- just to use the particular implementation >>>> you licensed from Developer. >>>> >>>> Let's say someone else uses the invention in Patent 1 in Product B, but >>>> he doesn't obtain a patent license. If you use Product B, you are at >>>> some risk, because Product B infringes Inventor's patent rights. You >>>> might get away with it for a while, if Inventor doesn't protect his >>>> invention, or just doesn't notice that Product B came out. But you're >>>> exposed nonetheless. >>> Take a slightly different approach here. Suppose instead of replacing >>> product A with product B, you make a small modification to product A. Do >>> you have the right to do that and still use it? >> Nice to see you back, Les. I always learn a lot from your posts. This >> time, I agree with you, but you might not agree with yourself by the end >> of things. >> >> If you have the right to modify Product A, then I think I agree with >> you, you can modify it as you wish. If Product A in practice is a >> closed-source application, you can't modify it, though. So the right to >> modify the software doesn't buy you anything. >> >> If you obtain Product B that implements some patented process from >> someone who does not have a patent license, then you should not use it. >> Even if the author gives you the right to modify his source code, he >> does not have the right to use the patented process in the software he's >> distributing to you. He owns his code, to be sure, but he doesn't own >> the process. That's owned by the patent holder, who didn't get paid. >> >> If the process isn't patentable where he lives, he's free to give the >> software to people there, and to give you different software that >> doesn't rely on the patented process. >> >> There are a lot of wrinkles here. What if the author doesn't know that >> you got the software? What if you got the software from someone else >> who lives where the author does? What if the Product B software doesn't >> really implement the patented process? What if you didn't know that the >> process was patented in the first place? You need an attorney for these >> questions. >> >> Whether you've licensed some other software that uses the patented >> process has no bearing. You're still free to use it, but you chose not >> to. >> >> Here's another way to look at it. If I buy a car with anti-lock brakes, >> I get to use that patented technology. I can disassemble the ABS module >> if I want and try to make my own module (the right-to-modify point). >> But I can't get anti-lock brakes on my next car for free; nor can I >> demand free ABS on a Chrysler just because my Ford ABS module is sitting >> on the shelf. >> >> I always worry that I won't make the point I intend, or maybe offend >> someone in doing it. Does that help you to see my point? > > I don't think this point is clear at all. This is software, remember, > just a collection of bits and I'm introducing the modifications myself. > Suppose I rearrange a few of the bits in program A as my own > modification, but keeping all the 1's and 0's that used to be there. > Suppose I keep rearranging them until they look just like program B > which might be something I developed myself or it might be very close or > identical to something someone else has done and published. At what > point do I stop having the right to use the process permitted by those > original bits that I still own. Now it becomes a question of whether I > have the right to use the parts of that paid-for Ford ABS if I bolt them > onto a Chrysler myself. I guess I will try to explain this to you one last time. The person(s) that wrote Program A, the one that you have on CD, bought and paid for a license to utilize certain other software in *their* Program A as needed. The original owner still owns the needed parts and Program A does not own anything except Program A. It just pays to use ihe other parts. You paid for a license to *use* Program A, even if it was bundled software that came with your computer when you bought it, as a whole product. You do not *own* Program A or anyof its parts. You can only use Program A as a whole product or give Program A away as a whole if you remove it from your computer. You do *not* have a license to use any of the parts seperately in any way. Program A has the right to use the parts. Not you. You only have the license to use Program A as a whole product. Simply put - You have a license to use, you do *not* even own, the whole Program A as provided and not the individual parts that Program A uses. Now if you want to write Program B and you use *any* of the copyrighted parts from Program A, or any of the parts that make up Program A if it is copyrighted, that you, yourself, do not have a license that *you* paid for to use you are breaking the law. Period. Honestly. Just read one of the darn EULAs. Or have an attorney explain it to you. -- David
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