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.> 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.
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.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.
Anyone else agree with my assessment? :-) --Nathanael