Re: [fielding@apache.org: Review of proposed Apache License, version 2.0]
On Sun, 2003-11-09 at 01:25, Don Armstrong wrote:
> > 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.
I'm unable to get into a long term discussion about this right now. Just
be on notice that this kind of opinion is senseless and utterly
counterproductive to free software development.
So you want companies to grant perpetual, non-exclusive, worldwide,
fully paid-up and royalty free patent licenses that are completely
irrevocable even when another company is using their software and suing
them for software patent infringement?
Get a clue people. If a patent licence does not terminate under such
circumstances then a free software friendly company may have no useful
negotiating position whatsoever. It can't counterclaim with its own
claims of patent infringement because it gave them up. The company needs
to be able to say "Yes, I may be infringing upon your software patent X
but if you initiate legal action against me you may be infringing upon
software patent Y. Care to negotiate?" If it can't do that it is a
sitting duck for any opportunistic litigant.
While reciprocity cannot stem the rise of companies that are just patent
licensing/litigation shells (that are unlikely to infringe upon patents
because they don't produce anything) it may still just provide a slight
disincentive for them to target free software if their business runs
upon quality software products like Apache.
No sane company will ever grant a perpetual, non-exclusive, worldwide,
fully paid-up and royalty free patent licence without a reciprocity
clause. Debian should not be indirectly legitimising the business
endeavour of engaging in litigation against free software developers and
destroying free software itself via licensing royalties. Debian should
not be attempting to kneecap the potential negotiating positions and
counterclaims of free software friendly companies in order for their
software to be included in Debian.
Regards,
Adam
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