Re: Proposed Apache license & patent/reciprocity issues

[Branden Robinson]

On Sun, Nov 16, 2003 at 04:29:25PM -0500, Sam Hartman wrote:
> I believe that the needs of the free software community are best met
> by patnet strategies that make it more expensive and difficult to
> enforce patents.

There are avenues of enforcement other than a court of law.  There's
good old-fashioned intimidation.

-- 
G. Branden Robinson|The first thing the communists do
Debian GNU/Linux   |when they take over a country is to
[EMAIL PROTECTED] |outlaw cockfighting.
http://people.debian.org/~branden/ |-- Oklahoma State Senator John Monks


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Re: Proposed Apache license & patent/reciprocity issues

[Brian T. Sniffen]

"Mahesh T. Pai" <[EMAIL PROTECTED]> writes:

> Brian T. Sniffen said on Wed, Nov 19, 2003 at 11:15:12AM -0500,:
>
>  > enumerated in US legislation -- they are alluded to in some laws, and
>  > mentioned in court cases, but intentionally underspecified.
>
> 'Law' is what the courts say it is. May be, the US legal system has a
> different view of the copyright law.

Different from what?  Indian law?  Certainly.  French law?
Absolutely.  The US Congress?  Well... maybe.

>  > You fail to distinguish between modification of an instance of a work
>  > -- such as sawing a book in half, or writing notes in the margins
>  > -- and
>
> The person  who steals a book  is guilty of larceny,  not violation of
> copyright. I  am very surprised  that you regard  physical destruction
> (ok. 'modification' if  you want it that way) of the  media on which a
> copyrighted  work is  contained  as modification  for  the purpose  of
> copyright. 

Hunh?  You snipped part of what I said: that there is a difference
between modification, which is not affected by copyright, and the
preparation of derivative works, which is affected by copyright.
Sawing a book in half is clearly modification, not preparation of a
derivative work.

>  > What you say here is exceptionally misleading.
>
> ??!!??

Well, it is.  You seem to be accepting the text of FAQs and summaries
as if they were part of the license.

> Please  re-read http://www.fsf.org/press/mysql-affidavit.html,
> paragraph 18.   The important words are  '...actually _subtracts_ from
> the author's usual " and "... unilaterally permitted ..."

Ah, yes.  For example, it says "unilaterally permitted all rights to
use, copy, and modify the software".  But we know that the GPL does
not restrict rights to use the software, so why is Moglen writing
this?  Perhaps it is that he is writing a summary and an affidavit,
not a strict legal document.

Similarly, he uses "modify" here in the same shorthand commonly used
by computer users and programmers: when I open some source file, make
some changes, and write it out under a new name, I say colloquially
that I have modified the file.  What I have legally done is to create
a derivative work of the original source file.

> After that, do proceed to read the concluding sentence of para 36.

GPL: However, parties who have received copies, or rights, from you
GPL: under this License will not have their licenses terminated so
GPL: long as such parties remain in full compliance.

And they can give a copy to anyone else, who then receives a new
license.

>   Mahesh T. Pai, LL.M.,   

Does LL.M. actually stand for something approximating Lawyer?

-Brian

-- 
Brian T. Sniffen[EMAIL PROTECTED]
   http://www.evenmere.org/~bts/

Re: Proposed Apache license & patent/reciprocity issues

[Mahesh T. Pai]

Brian T. Sniffen said on Wed, Nov 19, 2003 at 11:15:12AM -0500,:

 > enumerated in US legislation -- they are alluded to in some laws, and
 > mentioned in court cases, but intentionally underspecified.

'Law' is what the courts say it is. May be, the US legal system has a
different view of the copyright law.

 > You fail to distinguish between modification of an instance of a work
 > -- such as sawing a book in half, or writing notes in the margins
 > -- and

The person  who steals a book  is guilty of larceny,  not violation of
copyright. I  am very surprised  that you regard  physical destruction
(ok. 'modification' if  you want it that way) of the  media on which a
copyrighted  work is  contained  as modification  for  the purpose  of
copyright. 
 
 > What you say here is exceptionally misleading.

??!!??

Please  re-read http://www.fsf.org/press/mysql-affidavit.html,
paragraph 18.   The important words are  '...actually _subtracts_ from
the author's usual " and "... unilaterally permitted ..."

After that, do proceed to read the concluding sentence of para 36.

-- 
+~+
  
  Mahesh T. Pai, LL.M.,   
  'NANDINI', S. R. M. Road,   
  Ernakulam, Cochin-682018,   
  Kerala, India.  
  
  http://in.geocities.com/paivakil 
  
+~+

Re: Proposed Apache license & patent/reciprocity issues

[Brian T. Sniffen]

"Mahesh T. Pai" <[EMAIL PROTECTED]> writes:

> The  law, as  it stands,does  not  give you  the right  to modify,  or
> distribute a copyrighted work.  But, so long as your's is a legal copy
> you are  free to exercise all  fair use rights available  to you under
> the  law of copyright.

What you describe here bears no relation to copyright law in the
United States, and little relation to what I know of the copyright
laws of other nations.  For a start, "fair use rights" are not
enumerated in US legislation -- they are alluded to in some laws, and
mentioned in court cases, but intentionally underspecified.

> The non-free licenses take away even your fair use rights because what
> you get  is a license, and  not a copy  itself. 

My unsubstantiated impression is that courts have said licenses can't
remove fair use rights.

> You get the fair use rights when what you have is a copy; when you
> are _licensed_ a copy, you get precisely what is licensed to you,
> nothing more, nothing less. The GPL uses this technique employed by
> proprietary licenses to grant you more rights than what is given by
> the ordinary copyright law.  GPL #5 takes care of situations where
> you receive an infringing copy.
>
> You  can violate  the GPL  only  when you  try to  distribute a  work.
> without   complying   withits   terms.(modification,   without
> redistribution, does not  attract GPL)

You fail to distinguish between modification of an instance of a work
-- such as sawing a book in half, or writing notes in the margins -- and
creation of a derivative work.  Most of what programmers call
"modification" is actually preparation of a derivative work.  You have
no right to do so except as granted by a license, such as the GPL.

> Even when you violate the GPL, you still can continue to use the
> work itself. That is a wonder of the law of copyright, not the GPL.
> The GPL applies ONLY to (a) modifications, (2) distribution /
> copying, and (3) distributing extracts or modified
> copies. Therefore, you are mistaken in statements 4 and 5 above.
>
> GPL 4 and 5 simply reminds you the effect of law and the provisions of
> the GPL.

What you say here is exceptionally misleading.

-Brian

> Again, people  receiving derivative works get rights  in entire works,
> not a license to  the derivative works. So, #2 above is  a bit off the
> mark.
>
> Hope that clears things up.
>
> -- 
> +~+
>   
>   Mahesh T. Pai, LL.M.,   
>   'NANDINI', S. R. M. Road,   
>   Ernakulam, Cochin-682018,   
>   Kerala, India.  
>   
>   http://in.geocities.com/paivakil 
>   
> +~+

-- 
Brian T. Sniffen[EMAIL PROTECTED]
   http://www.evenmere.org/~bts/

Re: Proposed Apache license & patent/reciprocity issues

[Mahesh T. Pai]

Sorry for the late reply, but I was a bit busy.

Anthony DeRobertis said on Sun, Nov 16, 2003 at 03:13:59AM -0500,:

 >  1. Person A creates a work, and applies the GPL to it. You have a
 > license to A's work. You may not have a copy, but you still have
 > a license.
 >  2. Person B creates a derivative work of A's work. Under 2(b), he
 > grants you a license to his changes.
 >  3. You violate GPL 4. Your license to both A's and B's works are
 > revoked.
 >  4. Person C creates a derivative work of A's or B's work. You now
 > have a license to C's changes.
 >  5. You still can't use A's or B's work.
 > 
 > The only way to gain back your right to use the GPL'd work is to contact
 > all the copyright holders and ask for it.

I'm afraid this is not the way the GPL works.

The  law, as  it stands,does  not  give you  the right  to modify,  or
distribute a copyrighted work.  But, so long as your's is a legal copy
you are  free to exercise all  fair use rights available  to you under
the  law of copyright.

The non-free licenses take away even your fair use rights because what
you get  is a license, and  not a copy  itself.  You get the  fair use
rights when what  you have is a copy; when you  are _licensed_ a copy,
you  get precisely  what is  licensed  to you,  nothing more,  nothing
less. The GPL uses this  technique employed by proprietary licenses to
grant you  more rights  than what is  given by the  ordinary copyright
law.  GPL #5 takes care  of situations where you receive an infringing
copy.

You  can violate  the GPL  only  when you  try to  distribute a  work.
without   complying   withits   terms.(modification,   without
redistribution, does not  attract GPL) Even when you  violate the GPL,
you still can continue to use the work itself. That is a wonder of the
law  of  copyright,  not  the  GPL.   The  GPL  applies  ONLY  to  (a)
modifications,  (2)  distribution  /  copying,  and  (3)  distributing
extracts or modified copies. Therefore, you are mistaken in statements
4 and 5 above.

GPL 4 and 5 simply reminds you the effect of law and the provisions of
the GPL.

Again, people  receiving derivative works get rights  in entire works,
not a license to  the derivative works. So, #2 above is  a bit off the
mark.

Hope that clears things up.

-- 
+~+
  
  Mahesh T. Pai, LL.M.,   
  'NANDINI', S. R. M. Road,   
  Ernakulam, Cochin-682018,   
  Kerala, India.  
  
  http://in.geocities.com/paivakil 
  
+~+

Re: Proposed Apache license & patent/reciprocity issues

[Anthony DeRobertis]

On Nov 16, 2003, at 16:23, Sam Hartman wrote:


Anthony> I missed that one. You have a good point there... I don't
Anthony> know how to answer that one, or why it is done
Anthony> differently than 2(b).
Here is how the FSF explains it.  If you disagree with the following,
please cite applicable
law. http://www.gnu.org/press/mysql-affidavit.html


Paragraphs 22, 25, and 36, and 38 mention section 4 of the GPL. None 
seem to explain how exactly it works.

Re: Proposed Apache license & patent/reciprocity issues

[Brian T. Sniffen]

Sam Hartman <[EMAIL PROTECTED]> writes:

>> "MJ" == MJ Ray <[EMAIL PROTECTED]> writes:
>
> MJ> On 2003-11-15 04:14:44 + Walter Landry <[EMAIL PROTECTED]>
> MJ> wrote:
> >> It only revokes the patent license, not the whole license.
> >> Since Debian, to a large extent, only concerns itself with
> >> patents that are being enforced, it was considered fine [1].
> >> There was even a comment praising the patent stuff [2].
> >> Basically, if there was a patent being enforced then Debian
> >> might start worrying about these clauses.
>
> MJ> I think I can buy this. We evaluate the licence as if it
> MJ> contains no patent grants and see if that minimal state still
> MJ> meets the DFSG. The licence must only revoke the non-essential
> MJ> grants in this case and not the entire licence.
>
> I also buy this.  
>
> I believe that the needs of the free software community are best met
> by patnet strategies that make it more expensive and difficult to
> enforce patents.  And so to the extent we can do so while still being
> consistent with the letter of the DFSG, we should be sympathetic to
> such attempts.

Erm.  If you said "software patents," you'd be more in line with my
own beliefs.  As it is... the needs of the free software community
would be best met by making all sorts of things more expensive and
difficult.  I don't think licenses which prohibit voting Republican
are Free, and I don't think licenses which prohibit exercising other
legal right unrelated to the software in question are Free.

In particular, licenses which become non-free when I bring up an
unrelated law-suit are not Free.

-Brian

> We do not want to get in the position of evaluating the validity of
> patents and I do not think we want to penalize people for granting
> patent licenses to the community as a hole even if those licenses have
> strange strings attached.

Re: Proposed Apache license & patent/reciprocity issues

[Sam Hartman]

> "MJ" == MJ Ray <[EMAIL PROTECTED]> writes:

MJ> On 2003-11-15 04:14:44 + Walter Landry <[EMAIL PROTECTED]>
MJ> wrote:
>> It only revokes the patent license, not the whole license.
>> Since Debian, to a large extent, only concerns itself with
>> patents that are being enforced, it was considered fine [1].
>> There was even a comment praising the patent stuff [2].
>> Basically, if there was a patent being enforced then Debian
>> might start worrying about these clauses.

MJ> I think I can buy this. We evaluate the licence as if it
MJ> contains no patent grants and see if that minimal state still
MJ> meets the DFSG. The licence must only revoke the non-essential
MJ> grants in this case and not the entire licence.

I also buy this.  

I believe that the needs of the free software community are best met
by patnet strategies that make it more expensive and difficult to
enforce patents.  And so to the extent we can do so while still being
consistent with the letter of the DFSG, we should be sympathetic to
such attempts.

We do not want to get in the position of evaluating the validity of
patents and I do not think we want to penalize people for granting
patent licenses to the community as a hole even if those licenses have
strange strings attached.

Re: Proposed Apache license & patent/reciprocity issues

[Sam Hartman]

> "Anthony" == Anthony DeRobertis <[EMAIL PROTECTED]> writes:

Anthony> On Sun, 2003-11-16 at 10:35, Glenn Maynard wrote:
>> What about GPL #6?  "Each time you redistribute the Program (or
>> any work based on the Program), the recipient automatically
>> receives a license from the original licensor to copy,
>> distribute or modify the Program subject to these terms and
>> conditions."

Anthony> I missed that one. You have a good point there... I don't
Anthony> know how to answer that one, or why it is done
Anthony> differently than 2(b).
Here is how the FSF explains it.  If you disagree with the following,
please cite applicable
law. http://www.gnu.org/press/mysql-affidavit.html

Re: Proposed Apache license & patent/reciprocity issues

[Anthony DeRobertis]

On Sun, 2003-11-16 at 10:35, Glenn Maynard wrote:

> What about GPL #6?  "Each time you redistribute the Program (or any work
> based on the Program), the recipient automatically receives a license from
> the original licensor to copy, distribute or modify the Program subject to
> these terms and conditions."

I missed that one. You have a good point there... I don't know how to
answer that one, or why it is done differently than 2(b).




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Re: Proposed Apache license & patent/reciprocity issues

[Glenn Maynard]

On Sun, Nov 16, 2003 at 03:13:59AM -0500, Anthony DeRobertis wrote:
> Title 17 USC, Sec. 106.
> 
> Look at GPL 2(b) "to be licensed as a whole at no charge to all third
> parties under the terms of this License." You get your license to use a
> GPL program when:
> 
>   1) The program is licensed that way by its author
>   2) Modifications are created under Sec. 2(b).
> 
> You only have one license. If its terminated, you have none. Downloading
> a copy does not grant you the license.

What about GPL #6?  "Each time you redistribute the Program (or any work
based on the Program), the recipient automatically receives a license from
the original licensor to copy, distribute or modify the Program subject to
these terms and conditions."

-- 
Glenn Maynard

Re: Proposed Apache license & patent/reciprocity issues

[Anthony DeRobertis]

On Thu, 2003-11-13 at 19:57, Nathanael Nerode wrote:
> >
> In contrast, this second clause may be considered DFSG-free, I believe.  
> It states that claiming that *this work* infringes your patents causes 
> your patent licenses for *this work* to be terminated.  This is a clause 
> protecting the work's freeness, which *only* applies to people 
> attempting to make the work non-free.

I think I might be able to go along with that one. Would have to
consider it more, but it certainly doesn't smack of non-freeness. Quite
similar to GPL 4...


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Re: Proposed Apache license & patent/reciprocity issues

[Anthony DeRobertis]

On Fri, 2003-11-14 at 09:57, Glenn Maynard wrote:
> 
> "... Any attempt otherwise to copy, modify, sublicense or distribute the
> Program is void, and will automatically terminate your rights under this
> License."
> 
> What prevents me, after violating the license, from obtaining a new copy
> of the software and using (copying, modifying, distributing) that instead?

Title 17 USC, Sec. 106.

Look at GPL 2(b) "to be licensed as a whole at no charge to all third
parties under the terms of this License." You get your license to use a
GPL program when:

1) The program is licensed that way by its author
2) Modifications are created under Sec. 2(b).

You only have one license. If its terminated, you have none. Downloading
a copy does not grant you the license.

So, a scenario:
 1. Person A creates a work, and applies the GPL to it. You have a
license to A's work. You may not have a copy, but you still have
a license.
 2. Person B creates a derivative work of A's work. Under 2(b), he
grants you a license to his changes.
 3. You violate GPL 4. Your license to both A's and B's works are
revoked.
 4. Person C creates a derivative work of A's or B's work. You now
have a license to C's changes.
 5. You still can't use A's or B's work.

The only way to gain back your right to use the GPL'd work is to contact
all the copyright holders and ask for it.


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Re: Proposed Apache license & patent/reciprocity issues

[Henning Makholm]

Scripsit MJ Ray <[EMAIL PROTECTED]>

> I'm trying to grok the last paragraph of Henning Makholm's 
> comments in your first reference at 
> http://lists.debian.org/debian-legal/1999/debian-legal-199906/msg00218.html

Good luck. :-)

As my recent comments in the present thread may have indicated, I'm
now less certain about this than I was four years ago. Right now
I think that Brian Sniffen's arguments in

sound convincing.

-- 
Henning Makholm"My fate? Servitude to the Embodiment of Whoops."

Re: Proposed Apache license & patent/reciprocity issues

[MJ Ray]

On 2003-11-15 04:14:44 + Walter Landry <[EMAIL PROTECTED]> wrote:


It only revokes the patent license, not the whole license.  Since
Debian, to a large extent, only concerns itself with patents that are
being enforced, it was considered fine [1].  There was even a comment
praising the patent stuff [2].  Basically, if there was a patent being
enforced then Debian might start worrying about these clauses.


I think I can buy this. We evaluate the licence as if it contains no 
patent grants and see if that minimal state still meets the DFSG. The 
licence must only revoke the non-essential grants in this case and not 
the entire licence.


Will discovery of any essential patents without a royalty- and 
condition-free grant covering the software cause it to be moved to 
non-free? I'm trying to grok the last paragraph of Henning Makholm's 
comments in your first reference at 
http://lists.debian.org/debian-legal/1999/debian-legal-199906/msg00218.html


--
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Re: Proposed Apache license & patent/reciprocity issues

[MJ Ray]

On 2003-11-14 14:57:58 + Glenn Maynard <[EMAIL PROTECTED]> wrote:
What prevents me, after violating the license, from obtaining a new 
copy
of the software and using (copying, modifying, distributing) that 
instead?


As long as you've stopped the attempt, have not distributed any 
infringing copies and can still obtain a copy, possibly very little, I 
would think. I don't know of a case where that's happened, though, and 
you're probably safer asking [EMAIL PROTECTED] than me. (The MySQL case 
involved distributed infringing copies IIRC.)


--
MJR/slef My Opinion Only and possibly not of any group I know.
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Re: Proposed Apache license & patent/reciprocity issues

[Branden Robinson]

On Fri, Nov 14, 2003 at 10:32:09AM +, MJ Ray wrote:
> I think people are a lot more savvy about patent-related problems now 
> than they were 4 years ago, but it would be a pain to fix this now if 
> we got it wrong.
[...]
> I find it interesting that copyright licences that try to enforce 
> patent terms seem to have been welcomed by d-l subscribers in the 
> past.

I think you answered your own implicit question.

That, and I think we had less backbone in the past, due in large part to
a lack of experience.

-- 
G. Branden Robinson|Any man who does not realize that
Debian GNU/Linux   |he is half an animal is only half a
[EMAIL PROTECTED] |man.
http://people.debian.org/~branden/ |-- Thornton Wilder


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Re: Proposed Apache license & patent/reciprocity issues

[Walter Landry]

MJ Ray <[EMAIL PROTECTED]> wrote:
> On 2003-11-14 02:21:18 + Walter Landry <[EMAIL PROTECTED]> wrote:
> 
> > Unfortunately, you have precedent against you.  The IBM Common Public
> > License has just such a clause
> 
> It seems that this particular aspect (actions unrelated to the work 
> affecting the right to use the work) was not covered in previous 
> discussions at 
> http://lists.debian.org/debian-legal/1999/debian-legal-199906/msg00213.html
> 
> Maybe only revoking grants "under this License" was considered the 
> saving grace? Can anyone give a reference with that conclusion? I 
> can't find it. The other possibility is that people misread "this 
> software" in place of "software". Are licences which discriminate 
> against people engaged in unrelated legal action against you 
> DFSG-free? (I am looking at 5 and 9.)

It only revokes the patent license, not the whole license.  Since
Debian, to a large extent, only concerns itself with patents that are
being enforced, it was considered fine [1].  There was even a comment
praising the patent stuff [2].  Basically, if there was a patent being
enforced then Debian might start worrying about these clauses.

Regards,
Walter Landry
[EMAIL PROTECTED]

[1] http://lists.debian.org/debian-legal/1999/debian-legal-199906/msg00218.html
[2] http://lists.debian.org/debian-legal/1999/debian-legal-199905/msg00132.html

Re: Proposed Apache license & patent/reciprocity issues

[Glenn Maynard]

On Fri, Nov 14, 2003 at 10:32:09AM +, MJ Ray wrote:
> While considering that, I noticed something that seems odd. There 
> seems to be nothing to prevent a litigator from obtaining a new copy 
> of the software and using that instead. The new patent licence grant 
> isn't conditional on not currently suing IBM, and I think that would 
> fail DFSG 5 if it did. The terminations all seem to be from date of 

GPL#4:

"... Any attempt otherwise to copy, modify, sublicense or distribute the
Program is void, and will automatically terminate your rights under this
License."

What prevents me, after violating the license, from obtaining a new copy
of the software and using (copying, modifying, distributing) that instead?

I assume it doesn't work that way.  I don't really know how it does work,
though.

-- 
Glenn Maynard

Re: Proposed Apache license & patent/reciprocity issues

[MJ Ray]

On 2003-11-14 02:21:18 + Walter Landry <[EMAIL PROTECTED]> wrote:


Unfortunately, you have precedent against you.  The IBM Common Public
License has just such a clause


It seems that this particular aspect (actions unrelated to the work 
affecting the right to use the work) was not covered in previous 
discussions at 
http://lists.debian.org/debian-legal/1999/debian-legal-199906/msg00213.html


Maybe only revoking grants "under this License" was considered the 
saving grace? Can anyone give a reference with that conclusion? I 
can't find it. The other possibility is that people misread "this 
software" in place of "software". Are licences which discriminate 
against people engaged in unrelated legal action against you 
DFSG-free? (I am looking at 5 and 9.)


While considering that, I noticed something that seems odd. There 
seems to be nothing to prevent a litigator from obtaining a new copy 
of the software and using that instead. The new patent licence grant 
isn't conditional on not currently suing IBM, and I think that would 
fail DFSG 5 if it did. The terminations all seem to be from date of 
filing, so can they cover grants made after that date? That's probably 
one for the lawyers, but it seems to make the termination clauses a 
no-op as long as the software is still actively distributed.


I think people are a lot more savvy about patent-related problems now 
than they were 4 years ago, but it would be a pain to fix this now if 
we got it wrong. I think that ideally there should be seperate 
copyright and patent licence sections. Probably the best we can do is 
*ask* new licences to split them, but deal with combined ones as best 
we can. (And EUropeans should follow http://swpat.ffii.org/ and lobby 
their lawmakers.)


I find it interesting that copyright licences that try to enforce 
patent terms seem to have been welcomed by d-l subscribers in the 
past.


--
MJR/slef My Opinion Only and possibly not of any group I know.
Please http://remember.to/edit_messages on lists to be sure I read
http://mjr.towers.org.uk/ gopher://g.towers.org.uk/ [EMAIL PROTECTED]
 Creative copyleft computing services via http://www.ttllp.co.uk/

Re: Proposed Apache license & patent/reciprocity issues

[Walter Landry]

Nathanael Nerode <[EMAIL PROTECTED]> wrote:
> >
> >
> >> >5. Reciprocity. 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. 
> >
> This first clause applies to any lawsuit against any contributor 
> regarding any patent "applicable to software".  This is *way* too broad 
> to be free.  Suppose SCO had been a Contributor and had granted an 
> appropriate patent license.  Then IBM would lose its patent license 
> under this License due to an *entirely different* case not connected to 
> this work.  Further, suppose that there exists one legitimate patent 
> somewhere in the world which is applicable to software -- it cannot be 
> enforced against any contributor ever.  That's quite a bizarre and 
> extreme requirement.

Unfortunately, you have precedent against you.  The IBM Common Public
License has just such a clause

  Section 7
  ...
  If Recipient institutes 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 such Recipient under this Agreement shall
  terminate as of the date such litigation is filed.


> 
> >In addition, if You institute patent litigation against
> >> >   any entity (including a cross-claim or counterclaim in a
> >> >   lawsuit) alleging that the Work itself (excluding combinations
> >> >   of the Work with other software or hardware) infringes Your
> >> >   patent(s), then any patent licenses granted to You under this
> >> >   License for that Work shall terminate as of the date such
> >> >   litigation is filed.
> >
> In contrast, this second clause may be considered DFSG-free, I believe.  
> It states that claiming that *this work* infringes your patents causes 
> your patent licenses for *this work* to be terminated.  This is a clause 
> protecting the work's freeness, which *only* applies to people 
> attempting to make the work non-free.

This is also in the IBM license

  In addition, If Recipient institutes patent litigation against any
  entity (including a cross-claim or counterclaim in a lawsuit)
  alleging that the Program itself (excluding combinations of the
  Program with other software or hardware) infringes such Recipient's
  patent(s), then such Recipient's rights granted under Section 2(b)
  shall terminate as of the date such litigation is filed.

> Anyone else agree with my assessment?  :-)

Only if you think the IBM Common Public License is non-free.

Regards,
Walter Landry
[EMAIL PROTECTED]

Proposed Apache license & patent/reciprocity issues

[Nathanael Nerode]

>5. Reciprocity. 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. 


This first clause applies to any lawsuit against any contributor 
regarding any patent "applicable to software".  This is *way* too broad 
to be free.  Suppose SCO had been a Contributor and had granted an 
appropriate patent license.  Then IBM would lose its patent license 
under this License due to an *entirely different* case not connected to 
this work.  Further, suppose that there exists one legitimate patent 
somewhere in the world which is applicable to software -- it cannot be 
enforced against any contributor ever.  That's quite a bizarre and 
extreme requirement.



In addition, if You institute patent litigation against

>   any entity (including a cross-claim or counterclaim in a
>   lawsuit) alleging that the Work itself (excluding combinations
>   of the Work with other software or hardware) infringes Your
>   patent(s), then any patent licenses granted to You under this
>   License for that Work shall terminate as of the date such
>   litigation is filed.


In contrast, this second clause may be considered DFSG-free, I believe.  
It states that claiming that *this work* infringes your patents causes 
your patent licenses for *this work* to be terminated.  This is a clause 
protecting the work's freeness, which *only* applies to people 
attempting to make the work non-free.


Anyone else agree with my assessment?  :-)

--Nathanael