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From Jeffrey Thompson <jt...@us.ibm.com>
Subject Re: IBM's license for WS-Security - Take #2
Date Wed, 06 Jul 2005 06:02:45 GMT
Sorry for being silent for a while.  I'm not ignoring the list.  Well. . . 
. actually, I am.  I've been traveling.  Sitting right now in an internet 
cafe in Delphi, Greece.  Going to consult the Oracle on how to resolve 
this issue . . . . 

Niclas Hedhman <niclas@hedhman.org> wrote on 07/05/2005 11:18:18 PM:

> On Wednesday 06 July 2005 01:35, robert burrell donkin wrote:
> > (i suspect that we're all in consensus here but fumbling around to
> > understand the language...)
> Yes, I agree with your conclusions of a), b) and c).
> However, I read it that the text in Jeffrey's mail talks about 
> works has to execute an agreement with IBM, for the same patent license 
> 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. 

It would seem to me that nothing in that approach would conflict with 
Apache's goal as long as the process by which new implementations are 
licensed is not onorous.  (As I mentioned, many patent holders, including 
IBM, are looking at covenants not to assert which have virtually no 
process at all, so that would be great from Apache's perspective).   Until 
that happens, though, Apache really needs to make sure that the Apache 
licensees either are covered, or can easily get covered, by licenses for 
any known necessary patents.  Insisting that they get covered 
automatically isn't going to work (at least in the near term).  There are 
patent holders that aren't yet ready for that.

> Every mail I have risen about this, always turn over to "other patents". 
> mention that "we don't want patent grant to evaporate". A nice 
assurance, but 
> fairly non-assertive and non-authorative, don't you think?  :o)
> As I see it (taken from Jeffrey's posts);
> 1. "there isn't much interest in redrafting the details of a patent 
> that was published 3 years ago when there would be no practical effect 
> making changes" --> meaning IBM will not change the patent grant policy 
> ASF in this case.
> 2. "ASF can't transfer the license or sublicense it to customers.  See 
> other discussion as to why that doesn't prevent Apache from creating and 

> distributing implementations and why Apache's licensees are already 
> for their use."  -->  To me this is very vague. Can I or can I not make 
> one-line modification, 5 man-year re-shuffle, or not? Is the "license" 
in the 
> text above a license to any patent, a license to implement a spec, or 
> to use patents?

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. 

> IMHO, Dims haven't really got an answer to it all yet.
> Cheers
> Niclas
I apologize for the rambling, but I have to run.  I didn't have time to 
make it shorter.

Staff Counsel, IBM Corporation  (914)766-1757  (tie)8-826  (fax) -8160
(notes) jthom@ibmus  (internet) jthom@us.ibm.com (home) jeff@beff.net
(web) http://www.beff.net/ 

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