Re: Irrevocability and intellectual property

On Tue, May 27, 2003 at 01:57:27PM -0400, Peter D. Ward wrote:
> Then your proposition that QPL protects against someone like IBM from
> interferring with distribution of Herc is based not on upon any inherent
> trait of the QPL or open source, rather its based upon your belief that
> IBM has no property interest.  Makes your statement that "The QPL, like
> other Open Source licenses, is irrevocable, and gives people the right to
> redistribute copies they have in perpetuity" true only as a tautology ---
> no legal interest = no legal interest.

That's not what I said. If you'd read further, you'd have seen the
discussion of the Linux kernel. There's nothing about that discussion that
is limited to the Linux kernel. If IBM were to try to force me to stop
distributing Hercules, they could undoubtedly do so, but that would not end
its distribution, as I have no way to force others to stop distributing it.
The license is irrevocable, and would have to be invalidated by a court in
order for it to be otherwise. This is independent of the basis, or lack
thereof, of which claims for intellectual property are involved. A court,
after all, cannot order the impossible, and ordering me to stop all
distribution by others of the Hercules source code without invalidating the
QPL falls into that category. This is true of any Open Source Definition-
compliant license, as a basic design feature of that definition.

> SCO is not asserting any patent claims, and in consequence the down stream
> distributional consequence of their prevailing may be somewhat muted.  ie,
> copyright violations are perhaps more straightforwardly routed around
> then, say, patent claims.

SCO is actually asserting not only copyright, but trade secret claims as
well. The latter may be harder to route around, as they're the ones that
cover the most interesting bits of the Linux kernel.

> Given your claim that IBMers agree you've done about all you could with
> regard to IBM's property interests, why do you suppose they apparently
> decline to offer software licensing on top of Hercules?

I have no idea that they even decline to license software to run on Hercules
beyond your and Phil Payne's assertions. In particular, despite repeated
requests, I have never been sent any sort of an authoritative statement from
IBM itself, either directly or by way of a third party.

If I grant your assertion for the sake of argument, then I still have no
idea why they would make that choice. IBM has not seen fit to share its
thoughts with me. I doubt strongly they've seen fit to share their thoughts
on the subject with you, either. The statement I made was based on
discussions with individual IBMers who had previously expressed concerns
that Hercules was nothing more than a vehicle to enable piracy of licensed
IBM software, and may or may not represent IBM's official position; further,
they and I were referring to the issue of piracy of IBM licensed software,
not of any other intellectual property claims IBM may or may not have
against Hercules - of which you and Phil Payne are the only ones to raise
any sort of a fuss. Not even the IBMers I've spoken to have raised questions
about anything else. With all due respect, I submit that you and Mr. Payne
have no standing to be raising such issues.

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