Your point is taken regarding the tone of my prior post, and I apologize for the aggressive tone. Now, on with the polite discussion.
"There were later interviews/articles that suggested “in good faith” meant a cross-licensing scheme, which makes sense. Such cross-licensing schemes are commonplace. Tesla isn’t breaking any new ground. It also came out that Musk intends to obtain more patents. He wants to license, not abandon. He wants open source, not public domain. Of course, he’s still sitting on his trade secrets, that is, inventions that are not disclosed publicly."
I have been unable to identify any of these "further interviews/articles." Can you provide any citations to these articles where there was a clarification of the "good faith" statement by Musk or Tesla? I know that several outlets were conjecturing as to what "good faith" meant, but as far as I know, and as far as my google search revealed, Tesla itself never clarified what it meant (at least until Musk's recent comments cited in this article that it meant the patents were completely free). Furthermore, while you are correct that cross-licensing schemes are common-place and good for companies, there is no evidence that a cross-licensing scheme was what Tesla was proposing or requesting. Given that the only statements by Tesla/Musk have indicated no reciprocity requirement, Tesla is not requiring cross-licensing.
Where did he promise not to sue without condition?
Although there was never an explicit statement of "we promise not to sue without condition," that wasn't my argument. My argument is that the combination of Tesla's early statement "we will not initiate patent lawsuits against anyone who, in good faith, wants to use our technology" and Musk's recent statement "We actually don't require any formal discussions. So they can just go ahead and use them...You just use them. Which I think is better because then we don't need to get into any kind of discussions or whatever. So we don't know. I think you'll see it in the cars that come out, should they choose to use them" creates an implied license to anyone who takes advantage of it, and that license would probably be enough for a court to prevent a suit for patent infringement by Tesla. You cannot give someone permission for an action and then turn around and sue them when they take that specific action.
An open source license is not a contract. If it’s a contract, where’s the consideration?
The consideration is the use of the software. You gain the benefit of the software by agreeing to the terms of the open source license. But don't take my word for it, here's a case by the Court of Appeals for the Federal Circuit that accepts and addresses an open source license as a contract: http://www.cafc.uscourts.gov/images/stories/opinions-orders/08-1001.pdf
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Re: Re: Re:
"There were later interviews/articles that suggested “in good faith” meant a cross-licensing scheme, which makes sense. Such cross-licensing schemes are commonplace. Tesla isn’t breaking any new ground. It also came out that Musk intends to obtain more patents. He wants to license, not abandon. He wants open source, not public domain. Of course, he’s still sitting on his trade secrets, that is, inventions that are not disclosed publicly."
I have been unable to identify any of these "further interviews/articles." Can you provide any citations to these articles where there was a clarification of the "good faith" statement by Musk or Tesla? I know that several outlets were conjecturing as to what "good faith" meant, but as far as I know, and as far as my google search revealed, Tesla itself never clarified what it meant (at least until Musk's recent comments cited in this article that it meant the patents were completely free). Furthermore, while you are correct that cross-licensing schemes are common-place and good for companies, there is no evidence that a cross-licensing scheme was what Tesla was proposing or requesting. Given that the only statements by Tesla/Musk have indicated no reciprocity requirement, Tesla is not requiring cross-licensing.
Where did he promise not to sue without condition?
Although there was never an explicit statement of "we promise not to sue without condition," that wasn't my argument. My argument is that the combination of Tesla's early statement "we will not initiate patent lawsuits against anyone who, in good faith, wants to use our technology" and Musk's recent statement "We actually don't require any formal discussions. So they can just go ahead and use them...You just use them. Which I think is better because then we don't need to get into any kind of discussions or whatever. So we don't know. I think you'll see it in the cars that come out, should they choose to use them" creates an implied license to anyone who takes advantage of it, and that license would probably be enough for a court to prevent a suit for patent infringement by Tesla. You cannot give someone permission for an action and then turn around and sue them when they take that specific action.
An open source license is not a contract. If it’s a contract, where’s the consideration?
The consideration is the use of the software. You gain the benefit of the software by agreeing to the terms of the open source license. But don't take my word for it, here's a case by the Court of Appeals for the Federal Circuit that accepts and addresses an open source license as a contract: http://www.cafc.uscourts.gov/images/stories/opinions-orders/08-1001.pdf
Techdirt has not posted any stories submitted by OvertlyGrey.
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