Re: apache license 2.0 for consideration
Roy, Since you forwarded me the beginning of your list's thread on ASL2 and GPL2 I have been preparing the analysis you quite rightly sought. I regret that the statement at gnu.org was, and is, inadequate to explain FSF's concerns; you have correctly inferred that I did not write it. Today's statement by the Apache Foundation raises a new question for me, about which I had assumed that careful reading of your license would provide an answer, but which I answered for myself--after such a reading--differently than the Apache Foundation statement. I hope we can clarify both our views quickly, to avoid the public row that seems (unnecessarily so far as I can see) to be developing. For this purpose, I need to ask the question raised by today's statement: A developer, X, adds GPL'd code to Apache, and distributes the combination. The combined code, including the GPL'd code itself, practices the teaching of a patent, P, licensed under ASL2. A user, Y, asserts a defensive patent claim of infringement by Apache. Is the license to practice patent P in the GPL'd code added to Apache by X withdrawn or in force? Is the license as to the ASL code combined with the GPL code withdrawn or in force? I have been assuming, on the basis of the license text, which seemed clear to me, that the answer is withdrawn/withdrawn. Your statement of today asserting GPL compatibility suggests that the answer must be in force/in force. Can you help? Thanks and best regards. Eben -- Eben Moglen voice: 212-854-8382 Professor of Lawfax: 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 -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: apache license 2.0 for consideration
Eben Moglen scripsit: A developer, X, adds GPL'd code to Apache, and distributes the combination. The combined code, including the GPL'd code itself, practices the teaching of a patent, P, licensed under ASL2. A user, Y, asserts a defensive patent claim of infringement by Apache. Is the license to practice patent P in the GPL'd code added to Apache by X withdrawn or in force? Is the license as to the ASL code combined with the GPL code withdrawn or in force? I have been assuming, on the basis of the license text, which seemed clear to me, that the answer is withdrawn/withdrawn. Your statement of today asserting GPL compatibility suggests that the answer must be in force/in force. Can you help? I would point out that ASL2's clause 3 does not mention derivative works at all: it provides a patent license only for the Work, not for anyu Derivative Works licensed (under the terms of clause 4) under a different license. Since the Academic Free License 2.0 (http://www.opensource.org/licenses/afl-2.0.php) uses essentially the same language as the ASL 2.0, it would be useful if the FSF could re-evaluate its position on the AFL as well. The other objection, to the trademark clause, seems moot given the FSF's acceptance of the extremely similar trademarks clause of the ASL2. I ask as a friend of Larry Rosen's and as a developer of AFL-licensed software. -- A mosquito cried out in his pain, John Cowan A chemist has poisoned my brain! http://www.ccil.org/~cowan The cause of his sorrow http://www.reutershealth.com Was para-dichloro- [EMAIL PROTECTED] Diphenyltrichloroethane.(aka DDT) -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: apache license 2.0 for consideration
Hello Eben, Thanks for responding -- I do find your messages to be a great help in understanding license issues. On Monday, February 23, 2004, at 10:58 AM, Eben Moglen wrote: Since you forwarded me the beginning of your list's thread on ASL2 and GPL2 I have been preparing the analysis you quite rightly sought. I regret that the statement at gnu.org was, and is, inadequate to explain FSF's concerns; you have correctly inferred that I did not write it. Today's statement by the Apache Foundation raises a new question for me, about which I had assumed that careful reading of your license would provide an answer, but which I answered for myself--after such a reading--differently than the Apache Foundation statement. I'll assume you are referring to the statement at http://www.apache.org/licenses/GPL-compatibility.html I hope we can clarify both our views quickly, to avoid the public row that seems (unnecessarily so far as I can see) to be developing. For this purpose, I need to ask the question raised by today's statement: A developer, X, adds GPL'd code to Apache, and distributes the combination. The combined code, including the GPL'd code itself, practices the teaching of a patent, P, licensed under ASL2. A user, Y, asserts a defensive patent claim of infringement by Apache. Is the license to practice patent P in the GPL'd code added to Apache by X withdrawn or in force? Is the license as to the ASL code combined with the GPL code withdrawn or in force? I have been assuming, on the basis of the license text, which seemed clear to me, that the answer is withdrawn/withdrawn. Your statement of today asserting GPL compatibility suggests that the answer must be in force/in force. Can you help? That is a very complex set of issues. First, the patent is not only licensed under the ASL2 -- it is actually licensed by the contributor to the ASF and any recipient of the ASF's software as part of their contribution. The Apache License makes the recipient aware of that license and the condition of reciprocity (as accepted by our community of contributors) under which that license was granted. The ASF does not have the right to sublicense any such patent; we merely pass the license along from the contributors. Therefore, assuming that the patent was infringed by a contribution made by the owner of that patent to an ASL2 product, the license remains in force regardless of what other code/license terms are added to make up derivative works. The contributor's patent license is withdrawn from Y upon the claim of infringement (upon Y claiming that Y owns a patent that has not been licensed to Apache). Thus, your interpretation is mostly correct in that the answer to both of your questions is withdrawn from Y. A second issue, however, is that the GPL does not allow redistribution of the combination if a patent does exist and is not available free to everyone. Again, the ASL2 has no impact here, since a separate license to the patent may exist outside of the ASL2's required license. For example, if a company says this patent may be freely used within any product distributed under the GPL or the Apache License, then a user would still retain rights to use under the GPL even if the Apache License termination clause is triggered. That is because the termination is passive -- it only matters if the user has no rights aside from those given by the ASL2. So, there may be a case where a given software product may be incompatible with the GPL, whether or not it is licensed under the ASL2, simply because an enforced patent exists within that product and has not been licensed (as might be the case for patented technology that was independently invented for Apache, or for which the inventor failed to reference the existing prior art). I hope you agree that, in such a case, it is the product that is incompatible with the GPL and not the generic licensing terms. It is the GPL's own restrictions on redistributing works covered by an enforced patent that cause the combination to be non-distributable, and that is true even if the patent was infringed by the GPL part of the code (e.g., combining two independent products into one product may cause a new infringement even if neither one infringed separately). As we said in our statement, the ASF does not knowingly distribute patented technology unless it is licensed free for everyone (not just under the ASL2). The purpose of the patent license in ASL2 is to protect our users against deliberate contributions of patented technology that are later enforced against the end-user. Since nobody knows when a patent is infringed until the patent is approved and enforced, usually years after it was introduced, our contributors have agreed to work together on a royalty-free basis for anything they might contribute, provided that the people benefiting from that broad license are also willing to license their patents in the same work (or at least agree not to enforce them
Re: apache license 2.0 for consideration
I would point out that ASL2's clause 3 does not mention derivative works at all: it provides a patent license only for the Work, not for anyu Derivative Works licensed (under the terms of clause 4) under a different license. On a side note, since software patent law is applied to the method of something and not to the particular expression, a patent license for doing that something remains in force regardless of the software that is later used to do it. The license is from the owner of the method to the legal entity using that method. In other words, it is a blanket permission -- once you have the permission, you can use whatever tool you like (even one not derived from the ASL2 work) up until the permission is revoked. If a company sues for infringement on the basis of a patent being included in XY, where XY consists of X (non-infringing) and Y (infringing), then that will be brought up by the defense and the company will have to claim Y infringes as well (or drop the case entirely). As such, there is no need for the patent license to talk about derivative works. Nor would it be safe to do so, since derivative work is a concept of copyright law, not patent law. IANAL, so I'm not sure if that is codified somewhere or simply the collective experience of those I've talked to. Roy -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
