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Proposed Apache license & patent/reciprocity issues





>    5. Reciprocity. If You institute patent litigation against a
>       Contributor with respect to a patent applicable to software
>       (including a cross-claim or counterclaim in a lawsuit), then
>       any patent licenses granted by that Contributor to You under
>       this License shall terminate as of the date such litigation is
> filed.

This first clause applies to any lawsuit against any contributor regarding any patent "applicable to software". This is *way* too broad to be free. Suppose SCO had been a Contributor and had granted an appropriate patent license. Then IBM would lose its patent license under this License due to an *entirely different* case not connected to this work. Further, suppose that there exists one legitimate patent somewhere in the world which is applicable to software -- it cannot be enforced against any contributor ever. That's quite a bizarre and extreme requirement.

In addition, if You institute patent litigation against
>       any entity (including a cross-claim or counterclaim in a
>       lawsuit) alleging that the Work itself (excluding combinations
>       of the Work with other software or hardware) infringes Your
>       patent(s), then any patent licenses granted to You under this
>       License for that Work shall terminate as of the date such
>       litigation is filed.

In contrast, this second clause may be considered DFSG-free, I believe. It states that claiming that *this work* infringes your patents causes your patent licenses for *this work* to be terminated. This is a clause protecting the work's freeness, which *only* applies to people attempting to make the work non-free.

Anyone else agree with my assessment?  :-)

--Nathanael



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