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Re: DFSG Freeness of Patent Reciprocity Clauses

Anthony DeRobertis wrote:
> We must look at the entire freeness of a work, not just the copyright 
> freeness.

I think this is fine advice.

The Apple Public Source License (APSL) has a clause that makes licensees
choose between continuing to be an APSL licensee and allowing Apple to
infringe on their patents.

>From the APSL v2.0 (currently published at
http://www.opensource.apple.com/apsl/ but this could change as future
revisions come out; I don't know where Apple keeps static URLs pointing to
old versions of the APSL):

  12.1 Termination. This License and the rights granted hereunder will


    (c) automatically without notice from Apple if You, at any time during
    the term of this License, commence an action for patent infringement
    against Apple; provided that Apple did not first commence an action for
    patent infringement against You in that instance.

Apple has no patent infringement lawsuits against me and never has.  But,
hypothetically, if Apple infringes a patent of mine, it looks like I cannot
sue them for patent infringement without losing all my rights under the
APSL.  So, if I choose not to sue them, they have effectively granted
themselves a cost-free license to my patent.

Furthermore, the next section includes "use" as a covered activity under the

   12.2 Effect of Termination. Upon termination, You agree to immediately
   stop any further use, reproduction, modification, sublicensing and
   distribution of the Covered Code.

I realize, is not Debian, and I know the FSF's definition of Free Software
is not the same as Debian's, but the FSF publishes informative essays on
these matters.  The FSF used to have problems with the termination clause
and the patent license-granting clauses as worded in APSL v1.0 (see

   The termination clause says that Apple can revoke this license, and
   forbid you to keep using all or some part of the software, any time
   someone makes an accusation of patent or copyright infringement.

   In this way, if Apple declines to fight a questionable patent (or one
   whose applicability to the code at hand is questionable), you will not be
   able to have your own day in court to fight it, because you would have to
   fight Apple's copyright as well.

   Such a termination clause is especially bad for users outside the US,
   since it makes them indirectly vulnerable to the insane US patent system
   and the incompetent US patent office, which ordinarily could not touch
   them in their own countries.

   Any one of these flaws makes a license unacceptable.


   At a fundamental level, the APSL makes a claim that, if it became
   accepted, would stretch copyright powers in a dangerous way: it claims to
   be able to set conditions for simply *running* the software. As I
   understand it, copyright law in the US does not permit this, except when
   encryption or a license manager is used to enforce the conditions. It
   would be terribly ironic if a failed attempt at making a free software
   license resulted in an extension of the effective range of copyright

I thought they were right to raise these as important issues.

Apparently these practical problems weren't anywhere near the severity they
made them appear in their old essay because they did not stop the FSF from
declaring the APSL v2.0 a Free Software license and telling people "it is ok
to use and improve software which other people release under this license"
but to warn against developing new software under the APSL v2.0.

I don't understand the FSF's logic on this, but it reminds me that it is
wise to consider the freedom of licenses beyond mere copyright concerns.

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