Steve Langasek said: > On Mon, Nov 17, 2003 at 03:48:12PM -0500, Joe Moore wrote: http://nagoya.apache.org/eyebrowse/[EMAIL PROTECTED]&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.)
How can I say that my competitor is violating my patent (by running the contributed Apache code) without alleging that Apache contains the code? Note that I did not suppose that my competitor did anything other than use stock Apache, which happens to have my patented method implemented (not by me) in it. > 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. All patent licenses relevant to "the Work" and granted by this license are revoked. >> 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. I agree that most software patents should be nullified en masse (there are a few novel inventions in software, but most software patents are crap). I also agree that most software is covered by at least one crap software patent that we have no license to. However, a license is non-free if using the software incurs a significant cost to the user. The proposed Apache license imposes a very significant cost to the user. That cost is... they must give up the right to sue over any patent that is in Apache. > >> 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! A very nice side effect, but one that makes the Apache license more costly than a "copyright on all modifications to this software must be assigned to the original authors" license. The Apache license is not the place to try to abolish software patents. --Joe
