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

How Apache went from a rather decent 5 clause license to the proposed
11 clause license is a mystery to me. I strongly suggest the license
be gone over with a fine toothed comb and searched for areas where it
can be made more general and less specific.

On Sat, 08 Nov 2003, Brian M. Carlson wrote:
>       D. Any Contribution submitted by You to the Licensor shall be
>       under the terms and conditions of this License, without any
>       additional terms or conditions, unless You explicitly state
>       otherwise in the submission.

I can see no way that this term can ever be enforced without active
agreement on the part of the contributor. Mere transfer of IP is not
enough to establish an affirmation of the terms of the license for

Furthermore, the entire section 3 of this license is totally useless
and belongs somewhere else besides a software license.

>    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 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.

This is not DFSG free. While software patents are generally held to be
bad, it is not the purpose of a Free Software license to discriminate
against who can use the software. [This also has the wierd side effect
of effectively granting to each Contributor a license to use without
royalty any of the Licensee's patents applicable to software, no
matter how legitimate those patents are.] 

We should be dealing with invalid and/or improper software patents
through legislation and/or litigation rather than adding usage
restrictions to our formerly free software licenses.

>        7 (b) [...] The contents of the NOTICE file are for
>	   informational purposes only and do not modify the terms and
>	   conditions of this License.

Either NOTICE is copyright and warranty information, and it can't be
removed, or its not, and it can... this section seems to want it both

I'm tempted to consider the requirement to keep the NOTICES file
compatible with the DFSG as it appears to contain copyright notices,
but if it doesn't actually fullfill that role (ie, is purely
informational) it needs to be removeable to comply with the DFSG.

>   11. Limitation of Liability. Under no circumstances and under no


>       This limitation of liability shall not apply to liability for
>       death or personal injury resulting from Licensor's negligence
>       to the extent applicable law prohibits such limitation. Some

The limitation phrase in this warranty is suspicious. Most likely what
they mean is "we are not liable to the maximum extent possible under
applicable law" rather than "we are liable to the extent law prohibts
such limitation." [I'm not up on my warranty law, but someone really
ought to get a second opinion on this clause, as it definetly doesn't
jive with what I'm used to reading.]

When I get a chance, I'll look at the other licenses, but I see that
some of the same troubling clauses from the Apache License 2.0 show up
there as well.

[Feel free to forward these comments anywhere appropriate and/or draw
attention to them. I haven't done so because I'm not set in stone yet
on my opinions.]

Don Armstrong

When I was a kid I used to pray every night for a new bicycle. Then I 
realised that the Lord doesn't work that way so I stole one and asked
Him to forgive me.
 -- Emo Philips.


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