Apache 2.0 License Termination

https://mail-archives.apache.org/mod_mbox/archive-license/200311.mbox/%3Cm3k75ux1sz.fsf%40sol.sunstarsys.com%3E

Since it looks like the patent termination clauses are going to be scaled back from the proposed license, how do folks feel about extending the termination clause to cover 4a as well? The advantage would be that this might also prevent unpatented contributions from being usurped into a closed-source derivative by a non-contributing patent holder.

Since the majority of ASF contributions are likely to remain unpatented, this might be worth considering.

Thoughts?

– Joe Schaefer

https://mail-archives.apache.org/mod_mbox/archive-license/200311.mbox/%3C6D6463F31027B14FB3B1FB094F2C744704A11176@tayexc17.americas.cpqcorp.net%3E

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