On behalf of the Free Software Foundation, I wish to submit comments
on two aspects of ASL 2.0.
First, with respect to Section 3.C:
C. A Contribution is "submitted" when any form of electronic,
verbal, or written communication is sent to the Licensor,
including but not limited to communication on electronic mailing
lists, source code control systems, and issue tracking systems
that are managed by, or on behalf of, the Licensor for the purpose
of discussing and improving the Work, but excluding communication
that is conspicuously marked or otherwise designated in writing by
the Contributor as "Not a Contribution."
We believe that the intention here is to indicate that in order for
any modification of code under the license to be a Contribution, it
must be intentionally submitted to the Licensor. A patch put on an
FTP server or the public Web, and then either picked up directly by
the Licensor or forwarded by a third party, does not seem to be a
Contribution within the intended meaning of the clause. But as the
language stands, only the act of marking all such publicly-available
mods "Not a Contribution" ensures that such code is, indeed, not
treated as a "Contribution." FSF believes that the phrase "sent to
the Licensor" should be modified to read "intentionally sent to the
Licensor by its copyright holder" to clarify that intention, and to
prevent parties who make publicly accessible their patches and
improvements from having to mark "Not a Contribution" on every copy
they distribute or make publicly accessible.
Second, with respect to section 5:
FSF, having long warned against the dangers of software patents,
entirely shares the goal of providing protection against inappropriate
and destructive uses of patent claims to interfere with software
freedom. The Foundation expects version 3 of the GPL to incorporate
one or more license provisions designed to increase the collective
defense against patent abuse. The two provisions contained in section
5, however, embody two quite different theories of response.
It is evident that an implicit patent grant to make, use and sell
follows necessarily if the licensor of free software has patent claims
that read on the software it distributes under a free license. FSF
believes that it is appropriate to make that implicit grant explicit,
to increase the certainty of freedom, and to eliminate a potential
source of conflict between licensors and licensees over the scope of
the grant. When a free software program's copyright licensee chooses
to assert patent claims that would in turn decrease the freedom of the
work it has licensed, FSF believes that it may well be appropriate for
such an explicit patent license accompanying the free software
copyright license to terminate. Thus the second sentence of proposed
section 5 embodies a form of patent defense that FSF considers a
candidate for use in its own future free software licenses,
particularly version 3 of the GNU GPL.
The broad general termination provision contained in the first
sentence of section 5, however, raises much more serious problems.
If You institute 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 You under this
License shall terminate as of the date such litigation is filed.
The phrase "a patent applicable to software" includes patents whose
claims may potentially read on software even if the mode of practicing
the claims disclosed by the patent involved exclusively non-software
contexts, and even if the form of infringement being claimed in the
litigation initiated has nothing to do with software. This is, in
FSF's view, undoubtedly overbroad.
Failure to distinguish between offensive and defensive use of patent
claims means that A, vexatiously or frivolously sued by company B for
patent infringement or on some other ground, may be inhibited in
bringing forward legitimate claims of patent infringement against B,
lest it by doing so lose the benefit of a existing patent grant from C
it gained as a user of free software that has nothing whatever to do
with the dispute between A and B. Such a situation is particularly
troublesome where A is in no way acting to threaten the freedom of
free software, but B *is* doing so (perhaps, for example, by bringing
not patent claims but trade secret and contractual claims against A
with the specific intent of harming the freedom of free software), and
A's defensive assertion of patent claims results from patents
"applicable to software" but not presently being applied to software.
C, a licensor under ASL, then strategically acts to terminate A's
right to use free software under section 5, in order to help B achieve
an inappropriate leverage in its dispute with A. In such a situation,
far from protecting the freedom of free software against bad software
patents, the first sentence of section 5 has threatened the freedom of
free software by enabling strategic advantage to be taken in a dispute
that didn't even involve a software patent in the first place.
For this and other reasons, FSF believes that broad automatic
termination provisions like that contained in the first sentence of
section 5 are fraught with potentially serious unintended
consequences, and are not an appropriate vehicle for protecting the
freedom of free software against the serious threat posed by software
patent litigation. We would urge that the first sentence of section 5
be removed. Additional protection against patent abuse beyond that
contained in the second sentence of section 5 may well be necessary;
FSF continues to review possible approaches for inclusion in GPL 3,
but we believe that, at a minimum, distinctions between offensive and
defensive use, and between patent abuses that threaten the freedom of
free software and those that don't, need to be reflected in whatever
provisions are adopted.
FSF notes that section 5 is the only element of ASL 2.0 that is
incompatible with version 2 of the GNU General Public License. FSF
continues to believe that the achievement of compatibility between ASL
and GPL would be of enormous benefit to the community of free software
developers, allowing merger of valuable code bases currently
separated by license incompatibilities. FSF is pleased to note the
convergence implied by the ASL 2.0 draft. FSF will make efforts, in
the development, discussion, and adoption of GPL 3 to further the
process of convergence, by carefully considering the Apache
Foundation's approach to the patent defense problem. For this reason,
we consider the distinction between the approaches contained in the
first and second sentences of section 5 to be particularly
significant.
Respectfully submitted.
--
Eben Moglen voice: 212-854-8382
Professor of Law fax: 212-854-7946 moglen@
Columbia Law School, 435 West 116th Street, NYC 10027 columbia.edu
General Counsel, Free Software Foundation http://moglen.law.columbia.edu
