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From: "Roy T. Fielding" <fielding@gbiv.com>
Subject: Re: Harmony Podlling Quarterly Report
Date: Fri, 29 Jul 2005 15:47:55 -0700
To: general@incubator.apache.org
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On Jul 29, 2005, at 3:33 PM, Dalibor Topic wrote:
> Can I redistribute Apache Derby, unmodified, under the MIT
> license?

No, the MIT license is insufficient to meet the terms of the
Apache license.

> Looking at the ASL2, it seems that I can chose
> my terms for Derivative Works as a whole freely, as long as the terms =
I
> chose are not contrary to the ASL2. Is the MIT license acceptable as
> a license for a Derivative Works as a whole?

Yes, provided the license and notices within the source code of
the original work remain intact.

> If it is, let's say that I create a Derivative Work of Apache Derby
> by prepending each and every file in the tarball that I downloaded =
from
> Apache.org with the text
>
> "This Software has been modified, and therefore as a whole is licensed
> under the terms of the MIT license, which follows:

That isn't sufficient to create a derivative work under copyright law.

> [snip]
>
> To satisfy requirements for creation of a Derivative Work in the =
Apache
> Software License 2.0 of the original Work available from=20
> www.apache.org,
> and in order to be able to chose my own licensing terms, here is a
> highly creative haiku on software licensing I wrote specifically
> for this ocassion:
>
> Ugh Ugh Ugh Ugh Argh.
> Ugh Ugh Ugh Ugh Ugh Ugh Argh,
> D'oh D'oh D'oh D'oh Argh!"

Ditto, it is separable and therefore not a derivative work.

> The text I have says
>
> "If You institute patent litigation against any entity (including a
> cross-claim or counterclaim in a lawsuit) alleging that the Work
> or a Contribution incorporated within the Work constitutes direct or
> contributory patent infringement, then any patent licenses granted to
>  You under this License for that Work shall terminate as of the date=20=

> such
> litigation is filed."
>
> To me, that sounds as if the patent license termination is automatic
> as soon as the law suit is filed, rather than something that may or
> may not happen at the patent owner's discretion. Correct?

We don't own any patents.  The contributors own the patents and they
choose whether or not the license is actually terminated in that case.

>> In contrast, if you receive software via the GPL or MIX/X or
>> BSD licenses, there is no patent license at all and your rights
>> are equivalent to those where the license was terminated.
>
> Is that any different from someone who has received a Derivative Work
> based on software covered by the ASL2? Afaict, the patent license =
grant
> does not mention granting any rights to Derivative Works. I suppose
> I am wrong, but I can't see it in the license yet.

The patent grant is in the CLA, not ASL2.

>>> Would it be possible to fix the small bug in the ASL2 this way?
>>
>> No, it is not a bug.  It is an intentional feature to help those
>> of us who do not litigate our license to keep our developers
>> out of the court system and protect our foundation from submarine
>> submission of patented material.
>
> I am sorry about calling it a bug, and I appreciate the interesting
> device used to encourage recepients of ASF's software to avoid =
dragging
> memebers to court. Still, it is a feature I do not need, as I have no
> patents, and no intentions to sue the ASF, so I would like to turn
> that feature into a noop for those I distribute my haiku enhanced
> Derivative Works under the MIT to.

If none of the contributors has patents, then they can't license
them in the first place and the clause is already a noop.

 > Lawrence Rosen goes into this particular scenario in some detail wrt=20=

to
> sublicensing and the effects on the patent clauses in the AFL in his=20=

> book
> on Open Source Licensing, available at
> http://www.rosenlaw.com/oslbook.htm in chapter 10, pages 247-249.
>
> Rosen says
>
> "Does section 10 of the
> AFL extend through sublicensing to protect the author of A
> even against patent infringement lawsuits by downstream sub-
> licensees like X? [..]
> Do such terms bind=D1via sublicensing=D1the recipients
> of derivative works of AFL-licensed contributions?
>    I =DEnd it hard to believe that any court would bind any
> downstream sublicensee of an open source contribution to any
> terms and conditions of a license of which he was not
> informed and didn=D5t manifestly accept. That is certainly a basic
> tenet of contract law and a fair result in the context of mass-
> marketed open source software offered for free over the Inter-
> net. So to the extent that an AFL-licensed component was
> sublicensed by D as part of a derivative work, customer X at
> the end of the chain cannot be bound to the AFL but only to
> the license with D that he or she accepted.
> [..]License terms do not pass
> through via sublicensing unless A insists upon it in the soft-
> ware license, and the AFL does no such thing."
>
> He offers a discussion of pretty much the same scenario I am trying to
> figure out wrt to the ASL2 in the context of the similar patent grants
> in the AFL. Would the scenario discussed by Rosen for the AFL be any
> different for the ASL2?

Yes.  The patent license in ASL2 is not sublicenseable.  It is a
direct grant from the contributor to all recipients of Apache
software works to which they contributed.

....Roy=


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