Re: Proposed Apache license & patent/reciprocity issues

[Walter Landry <wlandry@ucsd.edu>]

Nathanael Nerode <neroden@twcny.rr.com> 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. 
> >
> 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.

Unfortunately, you have precedent against you.  The IBM Common Public
License has just such a clause

  Section 7
  ...
  If Recipient institutes 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 such Recipient under this Agreement 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.
> >
> 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.

This is also in the IBM license

  In addition, If Recipient institutes patent litigation against any
  entity (including a cross-claim or counterclaim in a lawsuit)
  alleging that the Program itself (excluding combinations of the
  Program with other software or hardware) infringes such Recipient's
  patent(s), then such Recipient's rights granted under Section 2(b)
  shall terminate as of the date such litigation is filed.

> Anyone else agree with my assessment?  :-)

Only if you think the IBM Common Public License is non-free.

Regards,
Walter Landry
wlandry@ucsd.edu