Recently, we've begun seeing more licenses that are designed to discourage patent lawsuits. They usually involve something along the lines of "If you engage in patent action against the licensor, bad things will happen".
"Patent action against the licensor" usually takes one of two forms. The first is "Any patent action against the licensor", with the second being "Any patent action against the licensor connected to the licensed work". An example of the first is the RPSL[1]. Any patent action against the licensor terminates your copyright license, even if you're alleging infringement in an entirely separate area. The MPL[2] is an example of the second. Here, patent action only results in termination of the copyright license if the action alleges infringement in the copyrighted work. "Bad things" can also take one of two forms. The first is "Termination of copyright license", which is the result of the two examples listed above. The second is "Termination of patent license", which also appears in the MPL[3]. In the first case, you lose all rights to do anything with the software. In the second case, you only lose the right to make use of the patents - you are still permitted to use the software, though doing so may result in you being open to patent infringement suits yourself. The motive behind these licenses is, in many cases, simply to discourage software patent lawsuits. This is probably an entirely reasonable aim. However, it's a situation that didn't really exist at the point where the DFSG were written. As a result, it's difficult to gain any real idea as to whether Debian should consider these free or not. Of course, it's also possible to come to the conclusion that certain classes of these clauses are free and some aren't - there's an obvious degree of difference between termination of copyright license and termination of patent license, and also between termination on all patent suits or termination on relevant patent suits. As a non-strictly related point, both the FSF and the OSI appear to consider clauses of this nature free. The lack of any real consensus on this topic within Debian makes it difficult to negotiate with license authors. If we disagree with the FSF, we probably need to make it clear precisely why we hold this opinion, and then set about trying to change other people's minds. [1] "11.1 Term and Termination. The term of this License is perpetual unless terminated as provided below. This License and the rights granted hereunder will terminate: ... (c) automatically without notice from Licensor if You, at any time during the term of this License, commence an action for patent infringement against Licensor (including by cross-claim or counter claim in a lawsuit)" [2] "8.2. If You initiate litigation by asserting a patent infringement claim (excluding declatory judgment actions) against Initial Developer or a Contributor (the Initial Developer or Contributor against whom You file such action is referred to as "Participant") alleging that: (a) such Participant's Contributor Version directly or indirectly infringes any patent, then any and all rights granted by such Participant to You under Sections 2.1 and/or 2.2 of this License shall, upon 60 days notice from Participant terminate prospectively, unless if within 60 days after receipt of notice You either: (i) agree in writing to pay Participant a mutually agreeable reasonable royalty for Your past and future use of Modifications made by such Participant, or (ii) withdraw Your litigation claim with respect to the Contributor Version against such Participant. If within 60 days of notice, a reasonable royalty and payment arrangement are not mutually agreed upon in writing by the parties or the litigation claim is not withdrawn, the rights granted by Participant to You under Sections 2.1 and/or 2.2 automatically terminate at the expiration of the 60 day notice period specified above." Where 2.1 and 2.2 grant you the right to use, modify and distribute. [3] "8.2. If You initiate litigation by asserting a patent infringement claim (excluding declatory judgment actions) against Initial Developer or a Contributor (the Initial Developer or Contributor against whom You file such action is referred to as "Participant") alleging that: (b) any software, hardware, or device, other than such Participant's Contributor Version, directly or indirectly infringes any patent, then any rights granted to You by such Participant under Sections 2.1(b) and 2.2(b) are revoked effective as of the date You first made, used, sold, distributed, or had made, Modifications made by that Participant." 2.1(b) and 2.2(b) grant you patent licenses. -- Matthew Garrett | [EMAIL PROTECTED]
