Re: DFSG Freeness of Patent Reciprocity Clauses

[Walter Landry <wlandry@ucsd.edu>]

Don Armstrong <don@donarmstrong.com> wrote:
> A few licenses have started to show up (some merely proposed licenses)
> with patent reciprocity clauses like the following two examples:
> 
> [From the Open Software License v 2.0]
> 
>     10) Termination for Patent Action. This License shall terminate
>         automatically and You may no longer exercise any of the rights
>         granted to You by this License as of the date You commence an
>         action, including a cross-claim or counterclaim, for patent
>         infringement (i) against Licensor with respect to a patent
>         applicable to software or (ii) against any entity with respect
>         to a patent applicable to the Original Work (but excluding
>         combinations of the Original Work with other software or
>         hardware).[1]
> 
> [From the current revision of the proposed apache license]
> 
>     If You institute patent litigation against any entity (including a
>     cross-claim or counterclaim in a lawsuit) alleging that the Work
>     or a Contribution incorporated within the Work constitutes direct
>     or contributory patent infringement, then any patent licenses
>     granted to You under this License for that Work shall terminate as
>     of the date such litigation is filed.[2]

>From the IBM Common Public License, which is used for a few things in main:

  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
  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.

Section 2(b) is just a patent grant.  So if a Recipient invokes patent
litigation against a Contributor, then the license effectively becomes
mute about patents.  I don't see how that can be DFSG-unfree, since we
have a number of DFSG-free licenses that are mute about patents.  The
Apache license takes a similar tack.  The OSL, on the other hand,
revokes the entire license, so you could argue that it goes too far.

Regards,
Walter Landry
wlandry@ucsd.edu