Compatability Of The Licensing Of Embedded Patents With Open Source Licensing Terms

Author:Iain G. Mitchell - Stephen Mason
Position:Advocate - Barrister
Pages:25-58
Compatibility Of The Licensing Of Embedded Patents With Open Source Licensing Terms 25
Compatibility Of The Licensing Of Embedded
Patents With Open Source Licensing Terms
Iain G. Mitchell QC,
a
Stephen Mason
b
(a) Advocate ; (b) Barrister
DOI: 10.5033/ifosslr.v3i1.57
Abstract
For many years software patenting has been an area of considerable
contention, particularly in relation to whether it can, or should, be able
to co-exist with Free and Open Source licenses. This issue has gained
substantial additional impetus with the publication by the European
Commission of the European Interoperability Framework, version 2,
which, amongst other objectives, seeks to promote a level playing field
for Free and Open Source Software in European public services.
However, interoperability will often require the software to interact with
a Standard which contains unavoidable patents.
The issues raised by this were of concern to a client of Andrew Katz
1
,
When the client sought the Opinion of Counsel on the matter, Andrew
Katz prepared a brief setting out the client's concerns and, by way of
illustration, providing the text of a cross-section of commonly-used Free
and Open source Software Licences.
The Opinion was issued jointly by Iain G. Mitchell QC and Stephen
Mason, Barrister.
The Client has now generously given permission for the Opinion to be
published provided that the client's identity is not disclosed. What
follows is a suitably edited version of that Opinion, which has been
anonymised to respect the wishes of the client and which has been
slightly shortened to allow for publication in the Review.
2
Keywords
Law; information technology; Free and Open Source Software; Open
Standards; European Interoperability Framework v.2
1 Andrew Katz, Solicitor, of Moorcrofts, Solicitors, James House, Mere Park, Dedmere Road, Marlow, Bucks SL7 1FJ
http://www.moorcrofts.com
2 The full (though anonymised) texts of the Brief prepared by Andrew Katz and of the Opinion are available at
http://www.ifosslr.org/ifosslr/article/view/57/7 and http://www.ifosslr.org/ifosslr/article/view/57/8 respectively.
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Compatibility Of The Licensing Of Embedded Patents With Open Source Licensing Terms 26
1. The Context:
A form of lock-in may arise in the field of interoperability the capacity of programs and of systems
to operate with each other. For example, the keeping confidential of the Source Code relating to a
platform, such as Windows, may be used to restrict the ability of other programs (whether themselves
proprietary or Open Source) to be developed so as to operate on that platform, and, especially when
combined with other practices such as bundling, can amount to abuse of a dominant position,
restricting competition. (See, for example, Microsoft Corp. v Commission case T-201/4 at §§1088
1090 of the Judgement dated 17th September, 2007).
Though most obvious in relation to interoperability between programs and platforms, the problem
potentially exists to a greater or lesser degree in any situation involving interoperability of programs
or systems, and it can readily been seen that a limitation on interoperability can have knock-on effects
not only in the realm of competition policy, but also at a functional level where there may be a
variety of different systems in different member states which are required to be able to work together.
In order to minimise such problems, at any rate at the level of the EU institutions and the member
state governments, there was developed the original European Interoperability Framework (EIF1),
published in 2004, which is more fully described in our Instructions, and to which we refer.
One particular problem recognised by EIF1 is the presence of unavoidable Patents in Open Standards
(and, whilst noting the provisions of Directive 98/3, we give standards the same extended meaning
in the present Opinion as is given in our instructions). This was sought to be addressed by the
grammatically inelegant, and almost impenetrable formulation:
The intellectual property i.e. patents possibly present of (parts of) the standard is
made irrevocably available on a royalty free basis.
Although the wording is obscure, this could be interpreted to mean that the minimum characteristics
required for an Open Standard included that where there were unavoidable patents, licences to permit
the programs or systems to utilise the standard should be made available on what is described in the
Instructions (at paragraph 6) as RAND-Z terms.
This raises two problems in relation to Open Source software. The first, and obvious, problem is the
compatibility of Open Source Licensing terms with any standard containing unavoidable patents and,
broadly, upon that we are asked to advise. However, there may also be a problem which is inherent in
the understanding of RAND terms, and to that we shall also direct our attention.
2. From EIF1 to EIF2:
The Instructions were prepared whilst discussions were still in train for the promulgation by the
Commission of a new Interoperability Framework, which we refer to as EIF2.
EIF2 was published on 16th December, 2010, as Annex II to Commission Communication Towards
Interoperability for European Public Services [COM (2010) 744 final]. So far as material to the
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present issue, paragraph 5.2.1 of the Communication requires, inter alia:
Intellectual property rights related to the specification are licensed on FRAND terms or
on a royalty-free basis in a way that allows implementation in both proprietary and open
source software.
FRAND is defined in footnote 19 as Fair, reasonable and non-discriminatory; and this particular
provision is justified in footnote 20 thus:
This fosters competition since providers working under various business models may
compete to deliver products, technologies and services based on such specification.
The intent which lies behind the provision referred to in paragraph 5.2.1 could not be more clear:
interoperability requires a level playing field between Proprietary and Open Source Software. What,
however, may be in issue is the extent to which this intention has been translated into the working of
the real world. It is to that question that the present Opinion is directed.
3. The Legal Standing of EIF2:
Whereas there was a sense that EIF1 was developed from the bottom up by individuals and bodies
and at least elements from within the Commission, there is more of a sense of EIF2 being directed
from the top. This reflects an acknowledgement by the Commission of the critical importance to the
Union of efficient interoperable systems in the public sector across Europe, and may perhaps be seen
as a winning of hearts and minds by the pioneers who developed EIF1.
This becomes clear in the opening paragraph of Commission Memo/10/689 of 16th December, 2010:
The need for effective interoperability is at the centre of the Digital Agenda for Europe
(see IP/10/581, MEMO/10/199 and MEMO/10/200), one of the flagship initiatives in the
Europe 2020 Strategy. In the case of public administrations, effective interoperability is
vital to ensuring that they can provide efficient, effective cross-border eGovernment
services, as reflected in the eGovernment Action Plan just adopted by the Commission
(see IP/10/1718). As part of the Digital Agenda and the eGovernment Action Plan, the
Commission committed itself to adopt in 2010 a Communication that introduces the
European Interoperability Strategy (EIS) and the European Interoperability Framework
(EIF), two key documents to focus our efforts and work via a common approach to
achieve better interoperability for European public services. They complement the Digital
Agenda for Europe in establishing a common approach for Member States public
administrations, to help citizens and businesses to profit fully from the single market.
However, the European Union has no treaty competencies in the area of the organisation and delivery
of public services (though the procurement of such services may engage Treaty and derived
principles). Consequently, it is not possible for the EU to legislate (for example by way of Directive or
Regulation) in the area of interoperability of systems for the provision of public services, and instead
the Commission was required to promulgate the Strategy and Framework documents by way of a
Commission Communication.
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It is easy to focus on what a Communication is not it is not law; it is not binding on anyone; it
cannot be legally enforced; it does not, in its terms, extend beyond the public into the private law
realm; it is not a formal standard. However, this is to underplay its moral authority it is a
communication proceeding from the Commission and has the full weight of the Commission behind
it; it would be highly persuasive in the event that it comes to be considered by the courts, for example
in a public procurement exercise and, as is apparent from the Memo, it is the result of intensive
consultation amongst all of the parties at European and member state level. In short, it has
considerable intellectual and moral authority, even if it lacks direct legal enforceability.
In these circumstances, though there is no legal imperative upon Member States to implement EIF2
so as to provide compatibility at national level within those States, this is the clear intention as
confirmed in the Communication:
Member States should.....align their national interoperability frameworks with the EIF.
This was endorsed in the Malmo Ministerial Declaration of 18th November 2009, and in the
Communication accompanying the eGovernment Action Plan 2011-2015 of December 2010, when
this action was formally targeted for achievement by 2013. It may also be hoped that there will come
to be some leakage from the public to the private sphere. In short, EIF2 is immensely more
authoritative than was EIF1.
4. Do existing Open Source Licences allow EIF2 to be given effect so as
to allow Licensees to use the Licensed Software where unavoidable
Patents are present, but Licences are available on RAND Terms?
(a) Context A health warning:
Typically, Open Source Licences contain no choice of law provisions and, if and when a dispute
arises, will fall to be interpreted by the court before which the litigation proceeds.
Given the international nature of most Open Source software, with, it may be, contributions from
developers in multiple jurisdictions, and the possibility that the parties may each, themselves, be
domiciled in different jurisdictions, ascertainment of the applicable law may be no easy question in
any given case, quite apart from then applying that law, which may not be the same as the law of the
forum.
Usually, and in the absence of the matter being focused by the parties, the court will either apply the
domestic law of the forum, or if it is contended that the proper law of the contract is (say) the law of
California, the court will apply the presumption that the law of the foreign state is the same as the
domestic law, unless the parties aver (and, as a matter of fact, not law) prove otherwise.
To some extent the problem is masked since it is, of course, the words of the licence which govern its
terms and, simplistically, one might think that the words would be interpreted in the same way,
whatever the governing law, but this should by no means be assumed. Furthermore, even if the words
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themselves receive a uniform interpretation, it does not follow that they will receive a uniform effect.
For example, a common feature of Open Source Licences is a term purporting to exclude liability. It
is not to be ruled out that, in a particular licence, technical words might be used having a different
meaning in different jurisdictions, but, even assuming that it is clear what the words mean, the court
might refuse to give effect to the provision excluding liability, or treat it as pro non scripto or even, in
an extreme case, decline to enforce the entire licence it all may depend on what the domestic law
provides in respect of the validity and/or enforceability of clauses excluding liability.
It is understood, however, that the omission of a choice of law clause by the drafters of the GPL was
deliberate.
Although a detailed consideration of this topic lies outside the scope of the present Opinion, it should
be recognised that what we say about the meaning of the various licences and how they relate to the
EIF2 is always subject to the caveat which we have just expressed.
(b) Interaction with Patent Licences:
Where there is an unavoidable patent embodied in a standard, then, if a software developer writes
software to operate with the standard, that will give rise to an infringement of the patent, unless the
patent owner grants permission for the patent to be used, which is to say, licences the patent to the
developer.
How that is sought to be achieved we discuss more fully below when we come to discuss RAND
licensing of patents, but for the present, we observe that, typically, the patent owner will licence the
patent to an individual licensee who will not be allowed to sublicense or assign the benefit of the
licence to another person. This is of some importance given the licensing models employed in Open
Source software: Developer A creates the software, and owns the copyright in it; since it interacts
with an unavoidable patent, he obtains a RAND licence for that patent from X, the patent owner. A
then licenses the copyright in his program to developer B under an Open Source Licence, but will
normally not be able to assign the licensees rights under the patent Licence. Accordingly, developer
B will require to obtain from X a separate patent licence. (Whether this is indeed the result will, of
course, depend upon whether the original patent licence in favour of A is, in its terms, assignable).
In these circumstances, it is likely that licensing of software under Open Source Licences will not
carry transferability of patent licences. Were it not for the analysis set out below of the particular
terms of certain restrictive Open Source licences, this would have been little more than merely
inconvenient, assuming (as EIF2 mandates) that patent licences would have been available to all
comers on RAND terms.
(c) Permissive Licences:
As explained in the Brief, permissive licences are seldom concerned to do other than ensure that
source code and, consequently, the corresponding object code may be used with minimal restrictions.
Commonly, those restrictions include (but seldom extend beyond) the following requirements:
1.Whatever the form of licence, the user is required to display notices indicating
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ownership of the intellectual property rights.
2.An assertion is made that the software is provided without warranty as to fitness for
purpose and limitation of liability.
(Where what we have termed a permissive licence contains terms specifically dealing with patent
issues, we have adopted the terminology hybrid licence, and comment on these in the following
section).
In these circumstances, one would be surprised to find any impediment to the use of Open Source
software even in the presence of unavoidable patents in the relevant standard. Of course, each such
Licence will fall to be interpreted according to its terms, but such licences as have been exhibited to
us present no apparent problem. In particular:
(i) MIT (X11) License:
This contains no provision inimical to the use of software licensed thereunder in conjunction with an
unavoidable patent (whether or not RAND Licensed).
(ii) BSD License:
This contains no provision inimical to the use of software licensed thereunder in conjunction with an
unavoidable patent (whether or not RAND Licensed).
(iii) Perl Artistic License 1:
This contains no provision inimical to the use of software licensed thereunder in conjunction with an
unavoidable patent (whether or not RAND Licensed).
(d) Hybrid Licences:
Certain of the permissive licences we have seen do include terms which touch on patents. In this
regard, we refer to the following:
(i) Perl Artistic License 2.0:
Clause (13) is what amounts, in substance, to a licence by the granter to the licensee of any patents to
which the granter has right, coupled with a termination of the licence in the event that the licensee
institutes proceedings for patent infringement.
However, it cannot extend beyond patent claims licensable by the Copyright Holder that are
necessarily infringed by the package. In view of the explanation, which we give at part 4(1)(b) of the
present Opinion, this would not generally include unavoidable patents licensed to the granter by the
patent owner. It is more properly directed at a situation in which the granter might have incorporated
patented material in his own work, and it merely provides that if the grantee raises any litigation in
which he (the licensee) claims that the package (the program) constitutes patent infringement, the
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licence in favour of the licensee is terminated. Typically this will affect (but is not limited to) an
attempt by the licensee to bring about downstream enforcement of patents by the licensee.
Thus, so far as is material to the present discussion, this licence is seen to be a permissive licence
akin to the other permissive licences discussed above.
(ii) Apache Public License:
Clause 3 is of similar effect to clause 13 in the Perl 2 License. The Apache Public License is, in the
same way, a permissive licence.
(e) Restrictive Licences:
Restrictive Licences often come with an agenda attached. In particular, their drafters are frequently
opposed to software patents, or, at any rate, see the presence of software patents as being inimical to
Open Source software, perhaps leading to proprietarisation by the back door. Accordingly, they
frequently seek to use their licensing terms in order to prevent this.
This approach is explained in the preamble to the GPL 2.0:
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 everyones free use or not at all.
Taking this policy statement at face value, it contains a major and a minor premise which are not
necessarily consistent with each other. In that it is the objective of FRAND Licenses to make a patent
available for the free use (and, in the case of FRAND-Z Licences, free in both senses of the word) of
each licensee and if it be that case that a Patent holder could not refuse to make a patent licence
available to an applicant, then that would have achieved the result of making the patent freely
available for everyones use. However, the preceding sentence appears to proceed on the basis that
any requirement for an individual to obtain an individual patent licence is inimical to free software.
It might be that we can go some way to analysing that tension if we consider the fundamental
architecture of the open source software licensing model, and in particular the GPL family of
licences.
(i) GNU General Public Licence 2.0:
The architecture of the GPL 2 is typical of restrictive Open Source Licences. It includes the following
elements:
1.It applies to any program or other work which has been distributed under the terms
of the GPL2 licence (clause 0);
2.It is clear from clauses 1 and 2 that the licence is a copyright licence;
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3.The user may copy and distribute verbatim copies of the Programs source code as
they receive it, in any medium (clause 1);
4.The user may modify the copy or copies of the Program or any portion of it, thus
forming a work based on the Program, and copy and distribute such modifications,
subject to the requirement that the person notifies subsequent users of the modified
program, and enables the next users to license the program to third parties at no cost
(clause 2);
5.There is no requirement to sign the licence, but the user is deemed to accept the terms
of the licence if he modifies or distributes the program (clause 5);
6.Clause 6 is fundamental to the architecture of GPL licensing. It provides:
Each time you redistribute the program (or any work based on the program), the
recipient automatically receives a license from the original licensor to copy or modify the
program subject to these terms and conditions. You may not impose any further
restrictions on the recipients exercise of the rights granted herein....
The model is that when developer A transmits the modified work to developer B, he is neither sub-
licensing nor assigning the licence granted to him by the original developer of the program; rather,
there is said to be created a fresh grant from the original developer to developer B, with a separate
grant of a licence by developer A to developer B of his works of modification. There are stray
references in GPL2 to sub-licensing, but GPL3 (which we consider more fully below) is more
explicit: the final sentence of clause 2 states: Sublicensing is not allowed; section 10 makes it
unnecessary. Section 10 provides:
Each time you convey a covered work, the recipient automatically receives a license from
the original licensors to run, modify and propagate that work, subject to this License.
It will also follow that there will be a similar automatic licensing of the modifying work by
Developer B.
Under the FRAND Licensing model, it will usually be the case that although each licensee will be
able to obtain his own individual licence from the patent owner, the process does not have the same
automaticity in respect of downstream users as is involved in the GPL Licensing model.
(As we discuss later, this may not always be the case, but for present purposes we assume it to be so);
7.The licence purports to prevent the distribution of the program by the licensee where,
by reason of a court judgement or for any other reason the licensees distribution is
subjected to conditions which would contradict the conditions of the licence (clause 7);
8.Where distribution or use of the program is restricted because of patents or
copyrighted interfaces, the original owner of the intellectual property who decides to
put his property under the terms of the licence may place limitations on the
geographical distribution of the program (clause 8);
There is no clause relating to governing law and jurisdiction, and many of the words and phrases may
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be construed differently in different jurisdictions.
Against the background of the drafters assumption as to the two Licensing models (Open Source and
FRAND), the crucial provision is seen to be condition (b) of clause 2:
You must cause any work that you distribute or publish, that in whole or in part
contains or is derived from the Program or any part thereof, to be licensed as a whole at
no charge to all third parties under the terms of this license.
This interacts with clause 7 to prevent a person from distributing the program where distribution
cannot be achieved in accordance with this condition.
At first sight, it might be thought to be arguable that all this means is that the copyrighted work
should be (copyright) licensed as a whole to all third parties and without charge. This view is
arguably reinforced by the terms of clause 0, which provide:
This License applies to any program or other work....... The Program, below, refers to
any such program or work, and a work based on the program means either the program
or any derivative work under copyright law...
If clause 2(b) were to be interpreted as solely relating to the distribution of a work free of copyright
royalty then condition 2(b) would be satisfied, even although there might be a need to pay a royalty
to the holder of a patent, and even although the granter of the GPL2 licence of the copyright work
might not be in a position to grant to the licensee a licence of any unavoidable patent.
However, we are not persuaded that clause 2(b) has only this limited effect. The problem lies with the
wording of clause 7.
There is clearly no question that clause 7 effectively prevents distribution of the work where
conditions are imposed on the licensee preventing him licensing the copyright in the work without
charge. For example, say that the work contains some lines of proprietary code, the licensee is sued
by the proprietary copyright holder, and the action is settled by means of imposing on the licensee an
obligation to extract a royalty and remit it to the proprietary copyright holder. In that situation, clause
7 would clearly be effective. However, the example contained within clause 7 is wider than that:
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 that you could satisfy both it and this License would be to refrain entirely from
distribution of the program.
On the face of it, this appears to prevent distribution of the program where a patent royalty is
payable. How to resolve this apparent conflict?
One way is to say that the example is only an example and does not purport to be an operative
provision: it is possible that it is merely a misunderstanding of the effect of the operative provision.
This is not an entirely happy analysis, as the court will endeavour to interpret the Licence as a whole.
A court is unlikely to be impressed by the circular argument that the example is indeed consistent
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with clause 2(b) as the example refers only to royalty free distribution and, in the context of the
entire licence, this means free of copyright royalties, not free of patent royalties. The problem is that
for the example to have any meaning, it would be necessary to imagine a situation in which a patent
might prevent the copyright in a work being licensed without payment of a royalty for the licensing of
the copyright, and we confess that this is difficult to envisage.
More tellingly, if we recollect the policy statement which appears in the preamble, read along with the
exposition of the fundamental architecture set out in clause 6, it becomes clear that the reference in
clause 0 to copyright law does not define the limit of applicability of the GPL 2 Licence, but
merely (as a matter of grammatical construction) relates only to a derivative work i.e. to be a
derivative work for the purposes of the licence, the work should also be a derivative work for the
purposes of copyright law. This is reinforced by the reference in clause 2(b) to licensed as a whole
[emphasis added]. Interpreted in that manner, the apparent conflict between clause 2(b) and the
example disappears: the whole Licence terms do make internal sense if the granter of the GPL
licence cannot provide the same automatic downstream cascade of patent rights as he can in respect
of copyright, he cannot grant a GPL copyright licence. Because this would permit a court to construe
the licence as a whole and without internal conflicts, we suspect that it would be the interpretation
which would be likely to commend itself to a court.
Consequently, the likelihood is that if a third party were to require to obtain from the Patent Holder
of an unavoidable patent a licence of that patent on terms that were other than royalty-free, then
clause 7 would be effective and the licensee under the GPL 2 licence would be prevented from
distributing the work at all.
Therefore, it is probable that the GPL2 Licence would not be capable of allowing programs licensed
thereunder to interoperate with EIF2, where there are unavoidable patents licensed on FRAND
royalty-payable terms. Even in relation to RAND-Z licences, there may be potential problems. First,
although, if no royalty is payable for the patent licence, there will not be an incompatibility with
condition 2(b) of GPL2 in relation to the use of the software to implement the standard, the RAND-
Z licence may not permit the licensee to develop a derivative work which, though still infringing the
patent (absent a licence), did not do so for the purpose of implementing the standard. In other words,
the licensee under the GPL licence may be unable to licence the work as a whole at no charge to all
third parties, in particular, those third parties who might seek to develop the software for a reason
other than interacting with the standard.
A further issue in relation to RAND-Z licences is that, under clause 2(b) what should be licensed at
no charge to all third parties is the work as a whole. It is at least arguable that clause 2(b) is not just
about charging (though that is the thrust of the example), but sets out a test which is cumulative.
There are 3 requirements, each of equal importance: first, the work as a whole should be licensed;
second, the licence of the work as a whole should be without charge, and, third, it should be so
licensed to all third parties. If a court were to regard the work as a whole as including that part of
the work as would (absent a patent licence) infringe an unavoidable patent, then the licence of the
work as a whole should include a patent licence in respect of that unavoidable patent.
The logic of the preamble read along with clause 6 would favour such an interpretation, and, in these
circumstances there is a strong chance that a court, interpreting the GPL License purposively would
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regard even FRAND-Z Licences as being incompatible with the GPL2.
There is an additional quibble that clause 2 (b) commences you must cause any work... to be
licensed as a whole [emphasis added]. If licensing of unavoidable patents on FRAND-Z terms were
otherwise compatible with GPL2 (as to which, see the previous paragraph) then such compatibility
would arise inherently in the system rather than be caused by the licensee. However (and in the event
that FRAND-Z licensing is otherwise compatible), we have no doubt that the court would give a
purposive interpretation to this clause and, providing the result were achieved, would treat it as
irrelevant how it came to be achieved.
Further uncertainty arises from the possibility that GPL 2 may be interpreted differently in different
jurisdictions. For example, some jurisdictions (including England & Wales and Scotland) will seek to
apply the contra proferentem rule and may reach a different interpretation from jurisdictions where
such a rule does not apply; or in some jurisdictions, it is competent for the court to hear evidence in
order to ascertain the context in which the licence falls to be interpreted (See Profile Software Ltd v.
Becogent Ltd [2005] ScotCS CSOH 28 (16 February 2005)). In relation to the incompatibility of
GPL2 with FRAND royalty payable licences, we do not think that such potentially differing
approaches are likely to make much, if any difference; but in relation to the compatibility of FRAND-
Z licences and the GPL2 it might be crucial, since a purposive interpretation may hang on questions
of context and proferens.
In short, even if the licensing of a patent embedded in a standard were to be on royalty free FRAND
terms, it is arguable that clause 7 would still prevent distribution of the work as the conditions
imposed in that clause are apparently cumulative and not alternative.
(ii) GNU Lesser General Public License 2.1:
This licence applies to the Library which is defined as a collection of software functions and/or
data prepared so as to be conveniently linked with application programs, and which has been
distributed under the terms of the GPL2 licence (clause 0).
Although the wording differs in detail in several places and the paragraph numbering is different, the
clauses with which the present Opinion is concerned are in substantially the same terms as the GPL 2
Licence and would, in our view, lead to the same outcome.
(iii) GNU General Public License 3:
The GPL 3 is much more detailed in its terms, though, as noted in connection with the GPL2, there
is no clause relating to governing law and jurisdiction, and we should therefore once more warn that
it is possible that some of the words and phrases may be construed differently in different
jurisdictions.
Subject to that caveat, it is clear from the Introduction what the intent of the author is. The last
paragraph of the Introduction states:
Finally, every program is threatened constantly by software patents. States should not
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allow patents to restrict development and use of software on general-purpose computers,
but in those that do, we wish to avoid the special danger that patents applied to a free
program could make it effectively proprietary. To prevent this, the GPL assures that
patents cannot be used to render the program non-free.
We are struck not by the similarity of this statement to the equivalent statement in GPL2, but by the
difference between them. The two statements are the same except for the last sentence, which, in the
GPL2 is as follows:
To prevent this, we have made it clear that any patent must be licensed for everyones
free use or not a