> On Fri, 21 Nov 2003, Lawrence E. Rosen wrote: > > 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.
> On Sat, 22 Nov 2003, Brian Behlendorf wrote: > I think you misunderstand, or I do. The patent licenses that > terminate are the patent licenses from the contributors as > they apply to Apache-released software. The primary > patent-related goal in Apache is to prevent a company from > sneaking code into the codebase covered by their own patent > and then seeking royalties from either the ASF or end-users, > whatever purpose those end-users have, commercial or otherwise. Under the AFL, patents from licensor (contributors *or* distributors) are licensed to all royalty-free. [See � 2.] Your scenario wouldn't happen if you used the AFL as both your contributors' license and your distribution license. The AFL � 2 prevents anyone from "sneaking code into the codebase covered by their own patent and then seeking royalties" for it. Section 2 of the AFL deals with the licensor's patents. As for the AFL patent termination provision [� 10], it deals with a very different situation, where a licensee claims patent infringement of his own patent -- either his patent relating to any software [� 10(a)] or his patent relating to the licensed software [� 10(b)]. Section 10 of the AFL deals with the licensee's patents. By the way, please don't refer to � 10 as a "mutual defense" provision. Largely at HP's suggestion [thanks, Scott!] the new versions of the AFL & OSL licenses don't use mutual defense language any more. The discussion today is about a provision similar in form and effect to the IBM (and Mozilla, and Apple, and Nokia, and etc.) patent termination language. My point -- and Scott's -- is that typical open source license patent defense provisions that terminate only the licensor's patent grants are useless to any licensor (project or contributor) that doesn't own any patents. The only meaningful threat is to terminate both the licensor's patent licenses [the license grant in AFL � 2] as well as the licensor's copyright licenses [the license grant in AFL � 1]. That is what AFL � 10 does, and what the proposed Apache license doesn't do. Scott is correct in characterizing this as an important consideration for licensees of open source software. (Scott calls it a "risk" and Russ calls it a "decision"; I agree with Russ.) I happen to believe that our software is worth more than the possible value a licensee might receive from asserting a software patent against an open source licensor or contributor. /Larry Rosen
