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From Simon Kitching <skitch...@apache.org>
Subject Re: IBM's license for WS-Security - Take #2
Date Wed, 06 Jul 2005 08:56:26 GMT
On Wed, 2005-07-06 at 02:02 -0400, Jeffrey Thompson wrote:
> > 
> > However, I read it that the text in Jeffrey's mail talks about
> derivative 
> > works has to execute an agreement with IBM, for the same patent
> license (i.e. 
> > a) in your scenario).
> > 
> > And so far, I have not seen someone with authority step up and say; 
> > "Unacceptable" ;o)
> > 
> 
> I certainly can't dictate Apache's policy on this point, however, I do
> feel compelled to point out that if Apache's policy is as stated, then
> Apache won't be able to implement pretty much any internet standard at
> all.  I don't set IBM's policy on this point either, but it is the
> same as almost every other patent holder that is trying to promote a
> standard.  If you commit to grant a patent license for implementations
> of the standard, you grant a license to each "NEW" implementation
> separately and you specifically limit them to correct implementations.
> Otherwise the patent holder doesn't get the "benefit" of promoting the
> standard.  

[snip]

> The law isn't necessarily as clear cut as programmers would want.  If
> it is still Apache's implementation with a few tweaks, then its still
> licensed.  If someone has completely rewritten it, then it is not
> licensed.  Everything in between is fact specific.  Conservative legal
> advice to a business planning on marketing the Apache code after
> making more than just bug fixes would be to get a license.  But, that
> would be conservative.  There are businesses that would just ignore
> the license, knowing that the license is there, for free, any time
> they want it.  That approach wouldn't be wrong either.  

[NB: I haven't read the conditions of the IBM patent, but I assume that
if it is necessary to apply for it then IBM have some kind of right to
refuse to grant it under certain conditions]

So the issue hinges on the definition of what is a "NEW" work?

And it is your opinion that anything other than "a few bugfixes"
qualifies as a NEW work?

Code that is not derived from the original work is obviously not covered
by the original patent grant, even when combined with code that *is*
derived from the original work - fair enough. But code I would expect
that the bits that are derivative to retain their patent grant even when
unrelated parts of the original work have been rewritten or replaced.

If code can't be modified without the permission of some company then
that code isn't open source by my definition. So I checked the APL. And
much to my surprise, this appears to be acceptable according to the APL;
Section 2 specifies that Copyright must be granted for Derivative Works
but Section 3 does not mention Derivative works at all; it says that
contributors are required to grant patents for their contribution to the
Work but doesn't mention derivatives.

I find this deeply disturbing. If I have understood this correctly then
I would indeed urge the ASF to walk away from such projects. The
open-source world is quite capable of defining its own standards, and
this is certainly healthier than building code that is advertised as
"open" when derivatives cannot in fact be created without the permission
of a company. It would be better if open and commercial entities could
cooperate - but promoting encumbered works as "open" is not honest.

I wonder how the GPL works in this regard. Section 2 requires that
"works based on" the program be freely redistributable. And section 7
requires that if you can't abide by the terms of section 2 then you
can't distribute the Program at all. So that would *seem* to forbid the
distribution of any work under the GPL for which "works based on" the
work need a separate patent license. So it seems to me (IANAL) that the
GPL doesn't suffer the serious flaw, as long as "based on" is
interpreted liberally.

Aargh - why on earth has this ****** patent system got us arguing about
"NEW" vs "works based on" - vague terms with no scientific definition of
any sort. This is enough to turn anyone Anarchist..or even Nihilist.

And of course just a reminder - this discussion (currently) applies only
within the USA and a few other unfortunate countries. The rest of the
world doesn't have to give such patent claims any respect at all.

Regards,

Simon


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