Re: [fielding@apache.org: Review of proposed Apache License, version 2.0]

[bts@alum.mit.edu (Brian T. Sniffen)]

Henning Makholm <henning@makholm.net> writes:

> From: Henning Makholm <henning@makholm.net>
> Subject: Re: [fielding@apache.org: Review of proposed Apache License, version 2.0]
> To: debian-legal@lists.debian.org
> Date: 17 Nov 2003 23:01:38 +0000
> Resent-From: debian-legal@lists.debian.org
>
> Scripsit bts@alum.mit.edu (Brian T. Sniffen)
>
>>    5. Reciprocity. If You institute patent litigation against any
>>       entity (including a cross-claim or counterclaim in a lawsuit)
>>       alleging that a Contribution and/or the Work, without
>>       modification (other than modifications that are
>>       Contribution(s)), constitutes direct or contributory patent
>>       infringement, then any patent licenses granted to You under this
>>       License for that Contribution or such Work shall terminate as of
>>       the date such litigation is filed.
>
>> That's certainly better.  It still has a problem in the following
>> scenario:
>> 1. I start using Apache.
>> 2. I develop a new process -- let's say an encryption algorithm, like
>>    RSA -- and patent it.
>> 3. Somebody contributes an implementation of my algorithm to Apache.
>>    This somebody has patents on critical parts of Apache.
>> Now I'm screwed: I can't sue Apache for illegally using my work
>> without my permission, or I'll lose my license to their code.
>
> I don't see that. If is only the grants "under this License *for* that
> Contribution or such Work" that terminate. If you does not use the
> version of Apache with your work in it, then your license to the
> version you do use does not self-destruct as a consequence of your suit.
>
> You may be screwed if you only discover the violation after you
> yourself have converted your website to use an Apache version that
> itself contains the violation. In that case you will need to backport
> the new features you need to an older Apache that does not contain
> your patent (and which thus has a license that will not self-destruct).

Whoah.  You're right, I missed that.

OK, that might actually be Free.  I'm not sure, and I'll need to think
about it hard.  It also seems to be a fine enough point that it
invites situations akin to Pine: a malicious or just confused
copyright^H^H^H^H^H^H^H^H^H patent holder might interpret it differently.

-Brian