Rant on BSD vs GPL was [Good ol' BSD vs. GPL]

Cathal Garvey cathalgarvey at cathalgarvey.me
Wed Jan 7 03:33:37 PST 2015

 > You cannot extinguish BSD software. You may close your
 > copy. However the original branch unaffected by that. Nor can
 > you patent your copy of BSD code, the code itself exists as prior art.

Embrace/Extend/Extinguish works by taking a codebase that can be 
improved (all codebases can be), making those improvements, and 
patenting the *improvements*. You can often successfully patent the 
original work, too, because the patent system is trash and open 
developers rarely have the resources to fight you.

The original code remains open ("Yay!"), but now the open developers are 
not technically entitled according to patent law to make the obvious 
improvements they were probably planning to make, because they've been 
patented by an extinguisher (whether MS, Apple, Yahoo, Google, FB, or 
merely the competitor-next-door).

Don't tell me that the obviousness of the obvious-next-steps will 
prevent patenting, because that's hogwash. This is the reality, it's 
what happens out there in the world.

The GPL acknowledges this by forbidding suits within the scope of the 
work (I think: GPL experts on-list?), preventing E3 from occurring. 
Other licenses often take steps in this direction, but the ultra-short 
"friendly and permissive" licenses usually don't, or do so in such a 
terse and legally unenforceable way that they might as well not be.

 > Don't mistake patent restrictions as freedom though.

Freedoms can be implicitly restricted merely by the act of withholding 
essential things. Food, water can be restricted by "private ownership" 
of a well to the degree that others in an area starve to death or 
subjugate themselves to slavery: this is "freedom" to own something 
exclusively becoming the instrument of enslaving others.

In a less dramatic but still important way, the "freedom" to proprietise 
a code-base can starve others of their freedoms by withholding what they 
need to exercise them, and potentially making them "slaves" to the code 
that has all the obvious improvements while forbidding free alternatives 

So, patent restrictions are freedom; they prevent the limitation of 
others' freedoms (being attacked with patents) by restricting the 
freedom of the licensor/licensee (to create or enforce patents). 
Preserving the rights of the few to patent and attack others opens the 
door to the abrogation of others' rights. Where, in this case, "others" 
can include the original developers whose work is co-opted, 
patent-encumbered, and proprietised.

Freedom is not merely defined in law but in experience, and simply 
removing explicit limitations on freedom (copyleft licenses) does not 
mean that the total freedom in the world has increased.

On 07/01/15 11:04, grarpamp wrote:
> On Wed, Jan 7, 2015 at 4:48 AM, Cathal Garvey
> <cathalgarvey at cathalgarvey.me> wrote:
>> Patents and profiting
>> from patents is an unrelated discussion to copyright-based licensing.
> Patents came about a bit before copyright. Today patents
> talk about licensing, and copyright talks about patent. They're
> not exactly inseparable.
> http://en.wikipedia.org/wiki/Intellectual_property
> http://en.wikipedia.org/wiki/Patent
>> But there are plenty of people out there willing to Embrace Extend
>> Extinguish, which GPL protects against (patent clauses and copyleft) and BSD
>> does not.
> You cannot extinguish BSD software. You may close your
> copy. However the original branch unaffected by that. Nor can
> you patent your copy of BSD code, the code itself exists as prior art.
> Copyleft or not is of no concern to actual extinguishment.
> Patenting your subsequent mods to code may yes block
> others from moving in that same direction. That's really a
> question of patent reform, not license. Restricting patents
> in license like GPL is interesting and useful (presuming
> tested as enforceable) if you're worried about direction.
> Don't mistake patent restrictions as freedom though.
> As Juan may tell you, both patents and license are bullshit,
> at least to some people.

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