Dimensionamiento de componentes de aplicaciones de negocios distribuidas

As discussed in Section 4.2.1 (Preconditions for Patent Exhaustion of FOSS), sale, licensing and/or redistribution of a copy of a FOSS program may trigger patent exhaustion when: The copy of a patented FOSS program is released (1) under and in

compliance with a FOSS license subject to this study granting a perpetual right to use

the copy against a single payment or free of charge without imposing restrictions on resale of the copy; (2) by or under authorization of the patent holder; and (3)(A) within the EEA and/or participating member states in order to trigger exhaustion of patents granted in the EEA and/or unitary patents, respectively; or (3)(B) within the US to trigger exhaustion of patents granted in the US. The elements of patent exhaustion must always evaluated on case-by-case basis.

As discussed in Section 4.1.1 (Patent Exhaustion in Europe) and 4.1.2 (Patent Exhaustion in the US), patent exhaustion triggers the rights to use and resell the sold article, including the copy of a patented FOSS program without a separate authorization of the patent holder. In comparison, when it comes to the copyright exhaustion, first sale of a copy of copyrighted work, including the copy of a FOSS program, exhausts the exclusive distribution right of the copyright holder in the copy permitting the owner (1) to distribute (including resell) the copy of a FOSS program within the EEA under the European copyright exhaustion doctrine; or (2) sell and otherwise dispose of the copy of a FOSS program in the US under the US doctrine of copyright exhaustion.

Since any FOSS licenses, by definition, permit further distribution of the copy of a FOSS program (of course subject to compliance with the license conditions of the respective FOSS license) copyright exhaustion does not appear to add any additional rights for the FOSS licensee from copyright perspective. Quite the contrary: Copyright exhaustion is limited to exhaustion of the distribution right, and does not exhaust the rights to copy the work nor create or distribute derivate works of the copy, which rights are retained by the copyright holder. Therefore, a FOSS licensee's rights are wider when the FOSS licensee uses a copy of a computer program under a FOSS license compared to a proprietary license even if the distribution right of the copy would have exhausted. Namely, as opposed to proprietary licenses, which limit the licensee's right to copy,

modify and/or distribute verbatim (unmodified) and modified copies of computer program, FOSS licenses expressly permit all of those acts.

On the other hand, exhaustion of patent rights appears to provide FOSS licensees with some additional security on top of exhaustion of the distribution right under the copyright exhaustion doctrine as well as the express copyright licenses granted under the FOSS licenses subject to this study. Namely, exhaustion of patent rights in a copy of a FOSS program should ensure that a FOSS licensee is allowed to freely use and resell the respective copy despite of the FOSS licensor's patents reading the copy of a FOSS program. While the GPLv2 states that the act of running of the Program is not restricted and that charging fee for distribution (i.e. sale) of copies of the program is allowed, and the BSD license expressly states that use is permitted, neither of those licenses expressly allow use or resale of a copy of the FOSS program under the patents of a FOSS licensor.611 _{Therefore, patent exhaustion appears to trigger an additional right to use}

and/or resell the copy of a FOSS program under the FOSS licensor's patents reading the respective copy without the concern that such use and/or sale would infringe the FOSS licensor's patent rights. As the MIT license expressly grants the right to use … and/or

sell the software, exhaustion of patent rights does not appear to give additional comfort

for the MIT licensees beyond the wording of the license grants from the copyright perspective. However, in the absence of an express patent license in the MIT license, exhaustion of patent rights in a copy subject to the MIT license certainly provides FOSS licensees with added security from patent perspective based on exhaustion of the rights to use and resell the copy irrespective of FOSS licensor's patents reading the copy. Interestingly, some scholars have argued that even if copyright exhaustion would not permit making new copies, it might in certain circumstances allow circumvention of the license conditions under a FOSS license: Namely, where exhaustion of rights applies to the copy of a FOSS program, exhaustion of copyrights in the said copy would result in that the lawful owner of the copy could dispose of the respective copy (in verbatim

form) as s/he deems fit free from the copyrights in the copy – including also license

conditions of the respective FOSS license, such as a copyleft-clause and/or source code

distribution requirement. The same observation has been raised in the context of US laws. However, whether the question is examined under European or the US laws, exhaustion would not, of course, permit production of new verbatim or modified copies of the FOSS program nor distribution of the modified copies, which can only be performed under and in compliance the express license grants and conditions of the respective FOSS license.612 Even if the exhaustion doctrine would apply, thus rendering the verbatim copy free of any copyright restrictions, the practical impact seems to be irrelevant: by way of example, verbatim distribution of the copy of a GPL licensed program, if originally received in source code form, would have to be redistributed in verbatim in source code form preserving copyright notices and license terms, etc. in the software.