Hi Scott, Thank you for forwarding to me HP's official position on open source patent defense provisions.
Here's what many of us have decided to say in our licenses: "You cannot use my open source software if you sue me for patent infringement with respect to a patent applicable to software." For IBM, Apple, Nokia, Sun, Mozilla (Netscape) and many other large companies, the ability to use their patents to defend themselves against patent infringement lawsuits is central to their patent strategies. And why not so while this race to the patent office continues unabated? Why should companies be expected to grant free licenses to their intellectual property if that IP will no longer be available for defensive purposes against other big companies? Unless they can retain the ability to use their patents for defensive purposes, those large companies will grant many fewer patent licenses -- and open source software will be the poorer. You say that "there is no good way to manage that termination risk." Just as none of us can easily manage the risk that we will be sued for patent infringement. How else would you have us deal with that threat, especially when it comes from our very own licensees and those who use our free software? You're correct on the narrow point that the patent termination provision in Apache's proposed new license is of little value to the Apache Software Foundation itself. Since ASF owns no important patents and probably never will, the right to terminate their patent licenses if they are sued for patent infringement will never be exercised by them. I assume that most of Apache's individual contributors also own no patents and will not benefit from that license's patent license termination. I don't think the author of the proposed Apache license really thought through that provision carefully, but merely copied it from one of the other licenses you criticized. That is another reason that the ASF should consider using the Academic Free License, which *would* effectively protect Apache and its contributors. It terminates both patent and copyright licenses, rather than just patent licenses, in the event of a claim of patent infringement "with respect to a patent applicable to software." I suppose that HP will like even less the Academic Free License (and the almost identical Open Software License) because if you sue us for patent infringement with respect to a patent applicable to software you will also lose our *copyright* licenses. But I see no reason to make the management of that termination risk any easier for big patent holders like HP. I want you to think long and hard before you sue me for infringement of a software patent. You may win royalties and damages, but you'll no longer be able to use my free software. /Larry Rosen P.S. Please consider how HP could benefit by energetically buying into this open source form of license termination rather than treating it as a business risk. The more patents and copyrights HP contributes into valuable open source software under such licenses, the more easily HP will be able to defend itself from software patent infringement lawsuits by its competitors. :-) > -----Original Message----- > From: Peterson, Scott K (HP Legal) [mailto:[EMAIL PROTECTED] > Sent: Friday, November 14, 2003 9:54 AM > To: Eben Moglen; [EMAIL PROTECTED]; Lawrence E. Rosen > Subject: FW: termination with unrelated trigger considered harmful > > > Although you may have already heard my view on broad license > termination provisions, I believe that the message below is > the first <public> statement that HP has made on the topic. > > -- Scott > > -----Original Message----- > From: Peterson, Scott K (HP Legal) > Sent: Friday, November 14, 2003 9:53 AM > To: [EMAIL PROTECTED] > Subject: termination with unrelated trigger considered harmful > > > At HP there is one set of open source licenses that gets more > critical pushback than any other, and the GPL is not in that > set. It is the IBM Public License (and its cousin the Common > PL) and the Mozilla Public License 1.1 (and its cousin NPL > 1.1). That heightened scrutiny is due to a single sentence -- > a sentence which is now proposed to be added to the Apache > license as the first sentence of section 5: > > "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." > > Because the trigger of this termination is unrelated to the > software being licensed, (in contrast to the second sentence > of section 5) there is no good way to manage that termination > risk. The addition of that sentence would require an entirely > new perspective on use of software under the Apache license. > Further, companies that consider incorporating software under > this license into a product that they will redistribute will > need to convince their customers that using software with > this sort of licensing contingency is a risk that the > customer ought to take. > > >From the list of goals, it appears that there may be belief that this > section somehow addresses goal 5: "It would be nice to have > some language in the license that protected us from > patent-infringement suits, at the very least from > contributors if not in more general ways. Solved in 2.0." > > For any "us" that does not own a patent that applies to > software licensed under the Apache license, section 5 > provides no benefit whatsoever. The benefit provided by > section 5 is a benefit that only applies to patent owners: if > you don't have a patent (in particular, if you don't have a > patent that applies to the Apache-licensed software), then > you aren't granting any license that is terminated by section > 5; section 5 gives you neither leverage nor other benefit. > > The first sentence of section 5 should be struck. It > seriously burdens the usability of software under the Apache > license; and it does so without advancing the goals of the ASF. > > -- Scott > ______________________________ > Scott K. Peterson > Senior Counsel > Hewlett-Packard Company >
