Re: [fielding@apache.org: Review of proposed Apache License,
Brian T. Sniffen said:
> Arnoud Engelfriet <galactus@stack.nl> writes:
>> Jennifer Machovec, who's drafting the license, posted a new
>> version to license@apache.org on November 13. You can read it at
>>
http://nagoya.apache.org/eyebrowse/ReadMsg?listName=license@apache.org&msgNo=24>
> Thanks. I think the new S5 looks like this:
>
> 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.
>
> What this amounts to is a non-Free patent license, since it is
> revocable by an unrelated lawsuit.
No, that's much worse.
1. I use Apache.
2. I develop a new process, and patent it.
3. Somebody reads my patent, and implements it in Apache.
4. A competitor of mine (otherwise unrelated to Apache) runs Apache and
gains access to the method in my patent.
5. I can not sue the competitor for patent infringement ("against any entity
... alleging that ... the Work ... constitutes direct or contributory
patent infringement") or I lose all patent grants under the Apache license.
6. I can not sue the person who contributed the patented method (for patent
claims), for the same reason.
7. In addition, I can not, in _any_ lawsuit, allege that some part of
unmodified Apache has patent-covered code.
This revised clause does much more to destroy the usefulness of software
patents. If Apache were licensed under this proposed license, any software
patent could be subverted (if the patent holder uses Apache).
--Joe
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