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Re: DFSG Freeness of Patent Reciprocity Clauses

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]

This looks dangerously overbroad, mostly because "applicable" is a very broad 
word.  A patent "applicable to software" could be any patent which might 
theoretically apply to something which wasn't hardware, including patents not 
actually applied to software.  Which probably isn't what was intended, but 
it's what's there.   A patent "applicable to the Original Work" seems to 
invite the same sort of broad interpretation.  So (i) may require that a 
patent-holder give up all patent enforcement rights against the Licensor in 
order to use the Work, while (ii) may require the the patent-holder give up 
all patent enforcement rights against anyone for patents which are 
"applicable" to the Work.

Obviously the intent is to make the patent-holder give up enforcement of bogus 
"software patents", which is reasonable.  I just wish it was written more 
clearly and narrowly so that it definitely didn't apply to traditional, 
legitimate patents.

As others have commented, the clause in the proposed Apache license (current 
revision) is specific to patent claims involving the licensed work itself; in 
other words, all it does is protect the freedom of the work itself.  It is 
*definitely* DFSG-free.  (And actually it is so because of commentary from 
this list and the FSF, among others, during the comments period.)

In fact, I think the Apache clause is a good model for minimal patent 
reciprocity clauses in free software licenses.  :-)  Even if it terminated 
copyright license as well (which would be GPL-incompatible), it would just be 
saying "If you challenge the legality of distributing this, you may not use 
it" -- which is utterly reasonable.

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