Re: [bitcoin-dev] DPL is not only not enough, but brings unfounded confidence to Bitcoin users

From: Daniel Robinson <danrobinson010@gmail•com>
To: Nick ODell <nickodell@gmail•com>,
	 Bitcoin Protocol Discussion
	<bitcoin-dev@lists•linuxfoundation.org>,
	Peter Todd <pete@petertodd•org>
Subject: Re: [bitcoin-dev] DPL is not only not enough, but brings unfounded confidence to Bitcoin users
Date: Fri, 14 Oct 2016 21:07:01 +0000	[thread overview]
Message-ID: <CAD438HtXOJ0QRhckORLfXX13CB=MGq1x5qakMiDhhNKipWDCtg@mail.gmail.com> (raw)
In-Reply-To: <CANN4kmefhJ+t9--JV+g1aZgX_wyw+hKqAeBm6=UOUBROVS7VpA@mail.gmail.com>

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First, non-practicing entities are definitely a problem, but they're far
from the only companies involved in software patent litigation. As you say
yourself, one reason companies obtain patents is to "prevent
competition"—meaning they produce a competing product. Look at the
billion-dollar lawsuits in the smartphone patent wars.

(Unless you're referring to "patent privateers" that assert claims and are
only indirectly sponsored and controlled by real tech companies. I don't
think the Defensive Patent License directly addresses that problem—Section
7.1 defines an "affiliate" relatively narrowly—although the Apache 2.0
license arguably does, with its broad definition of "Legal Entity." I don't
profess to know anything about the reasoning behind the DPL's wording, and
I may be missing something; maybe a future version of the DPL will close
that loophole if it becomes an actual problem.)

Second, as several people have noted on this list, patent applications
unfortunately seem to be more effective than defensive publication at
getting prior art under the noses of the patent examiners. So obtaining a
patent for defensive purposes makes it more difficult for others to obtain
patents on the same subject matter.

(Usual disclaimers apply. Nothing you read on bitcoin-dev is legal advice;
don't take legal advice from mailing lists; come on)

On Fri, Oct 14, 2016 at 12:01 PM Nick ODell via bitcoin-dev <
bitcoin-dev@lists•linuxfoundation.org> wrote:

Pledging to not use patents offensively defeats the point of owning patents.
The point of owning a patent is so that you can use it offensively, either
to
prevent competition, or get licensing fees.

Obtaining a patent for defense doesn't make sense. The litigants you need to
worry about do not produce or make anything. Their 'product' is patent
lawsuits.

Unless you have a patent on using a mail-merge program to sue people, your
defensive patents are useless in that situation.

On Fri, Oct 14, 2016 at 4:57 AM, Peter Todd via bitcoin-dev
<bitcoin-dev@lists•linuxfoundation.org> wrote:
> On Fri, Oct 14, 2016 at 07:38:07AM -0300, Sergio Demian Lerner via
bitcoin-dev wrote:
>> I read the DPL v1.1 and I find it dangerous for Bitcoin users. Current
>> users may be confident they are protected but in fact they are not, as
the
>> future generations of users can be attacked, making Bitcoin technology
>> fully proprietary and less valuable.
>
> Glad to hear you're taking a conservative approach.
>
> So I assume Rootstock is going to do something stronger then, like
> Blockstream's DPL + binding patent pledge to only use patents defensively?
>
>     https://www.blockstream.com/about/patent_pledge/
>
> Because if not, the DPL is still better than the status quo.
>
>> If you read the DPL v1.1 you will see that companies that join DPL can
>> enforce their patents against anyone who has chosen not to join the DPL.
>> (http://defensivepatentlicense.org/content/defensive-patent-license)
>>
>> So basically most users of Bitcoin could be currently under threat of
being
>> sued by Bitcoin companies and individuals that joined DPL in the same way
>> they might be under threat by the remaining companies. And even if they
>> joined DPL, they may be asked to pay royalties for the use of the
>> inventions prior joining DPL.
>>
>> DPL changes nothing for most individuals that cannot and will not hire
>> patent attorneys to advise them on what the DPL benefits are and what
>> rights they are resigning. Remember that patten attorneys fees may be
>> prohibitive for individuals in under-developed countries.
>>
>> Also DPL is revocable by the signers (with only a 180-day notice), so if
>> Bitcoin Core ends up using ANY DPL covered patent, the company owning the
>> patent can later force all new Bitcoin users to pay royalties.
>
> Indeed. However, you're also free to adopt the DPL irrevocably by
additionally
> stating that you will never invoke that 180-day notice provision (or more
> humorously, make it a 100 year notice period to ensure any patents
expire!).
>
> If you're concerned about this problem, I'd suggest that Rootstock do
exactly
> that.
>
>> Because Bitcoin user base grows all the time with new individuals, the
sole
>> existence of DPL licensed patents in Bitcoin represents a danger to
Bitcoin
>> future almost the same as the existence of non-DPL license patents.
>
> To be clear, modulo the revocability provision, it's a danger mainly to
those
> who are unwilling to adopt the DPL themselves, perhaps because they
support
> software patents.
>
>> If you're publishing all your ideas and code (public disclosure), you
>> cannot later go and file a patent in most of the world except the US,
where
>> you have a 1 year grace period. So we need to do something specific to
>> prevent the publishers filing a US patent.
>
> Again, lets remember that you personally proposed a BIP[1] that had the
effect
> of aiding your ASICBOOST patent[2] without disclosing that fact in your
BIP nor
> your pull-req[3]. The simple fact is we can't rely solely on voluntary
> disclosure - your own behavior is a perfect example of why not.
>
> [1]: BIP: https://github.com/BlockheaderNonce2/bitcoin/wiki
> [2]: ASICBOOST PATENT https://www.google.com/patents/WO2015077378A1?cl=en
> [3]: Extra nonce pull request:
https://github.com/bitcoin/bitcoin/pull/5102
>
>> What we need much more than DPL, we need that every BIP and proposal to
the
>> Bitcoin mailing list contains a note that grants all Bitcoin users a
>> worldwide, royalty-free, no-charge, non-exclusive, irrevocable license
for
>> the content of the e-mail or BIP.
>
> A serious problem here is the definition of "Bitcoin users". Does Bitcoin
> Classic count? Bitcoin Unlimited? What if Bitcoin forks?
>
> Better to grant _everyone_ a irrevocable license.
>
>
> Along those lines, it'd be reasonable to consider changing the Bitcoin
Core
> license to something like an Apache2/LGPL3 dual license to ensure the
copyright
> license also has anti-patent protections.
>
> --
> https://petertodd.org 'peter'[:-1]@petertodd.org
>
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