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

On Mon, Nov 17, 2003 at 03:48:12PM -0500, Joe Moore wrote:

> 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.

AFAIK, #5 does not hold.  You needn't allege that Apache violates your
patent in order to argue in court that your competitor's work does
violate your patent, regardless of where they say they got the idea.
(It would simply not be relevant to the legal proceedings unless you
intended to sue over Apache itself.)

It's still an improvement anyway, since only the patent license is
revoked.  I think the clause as written above is compatible with the
DFSG, given my understanding of software patents as a legal abortion
that should be regarded as non-existent by default.

> 7. In addition, I can not, in _any_ lawsuit, allege that some part of
> unmodified Apache has patent-covered code.

... without losing your rights to any patents covering Apache.  But
since software patents should be nullified en masse, and most free
software seems to be covered by patents that we have no license to in
any case, I don't see how this should be considered non-free.

> 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).

A very nice side effect indeed!

Steve Langasek
postmodern programmer

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