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From "Geir Magnusson Jr." <g...@pobox.com>
Subject Fwd: AL's patent license in the context of derivative works
Date Fri, 04 Apr 2008 12:04:19 GMT
Via permission from Sam to post this here, containing only material  
from Sam and I...

Begin forwarded message:

> From: "Sam Ruby" <rubys@intertwingly.net>
> Date: April 4, 2008 6:41:29 AM EDT
> To: legal-internal@apache.org
> Subject: Re: AL's patent license in the context of derivative works
> Reply-To: legal-internal@apache.org
>
> On Fri, Apr 4, 2008 at 6:03 AM, Geir Magnusson Jr. <geir@pobox.com>  
> wrote:
>>
>> These questions came from Sam when he appeared to be trying to  
>> understand
>> the question that I was asking.  The discussion Roy and I had on
>> legal-discuss was for me,  Bill's horror that I asked questions  
>> like this at
>> the behest of VP, Legal in public notwithstanding.
>>
>> From it, I concluded, hopefully correctly,  that :
>>
>> 1) there are limits on the patent license(s) granted by a  
>> contributor via
>> the Apache License (although we cant seem to nail down what they are)
>
> The most recent FAQ entries focused on WHICH patents a contributor
> voluntarily license to the ASF as a consequence of their contribution.

That's the main objective, surely.  But I'm still bothered by the  
apparent usage constraints outlined in the answer to question 3.

>
> Note that the license, as Roy noted, is from the contributor to the
> ASF, and the contribution itself is only used to determine what
> patents are to be so licensed.

I thought that the ASF was given a broadly-usable patent license only  
in the case of the contributor being a CLA signatory, whereas I read  
the Apache License as specifically granting the patent license to the  
users of the specific Work to which the contribution was made.


>
>> 2) that the patent license applies to "covered Works", but the  
>> scope of
>> that still isn't clear to me beyond either the product contributed  
>> to - in
>> the case of an AL only contribution - or any Apache product - in  
>> the case of
>> an ICLA-signing contributor, a situation that I find troubling in  
>> itself as
>> either the additional language in the CLA is unnecessary, or we are  
>> at risk
>> of the odd situation of Apache projects infringing patents that  
>> other Apache
>> projects don't infringe via the former using code from the latter
>
> Again, the patent license is between people/entities.  The Work help
> determines WHICH patents are involved.

But my read of what Roy said  is that it *also* constrains/limits the  
context in which the person can  benefit from the license (e.g. what  
that person is able to do in general) :


On Apr 3, 2008, at 10:31 PM, Roy T. Fielding wrote:
> On Apr 3, 2008, at 7:08 PM, Geir Magnusson Jr. wrote:
>> On Apr 3, 2008, at 9:41 PM, Roy T. Fielding wrote:
>>> On Apr 3, 2008, at 5:34 PM, Geir Magnusson Jr. wrote:
>>>> However, I still can't see how I'm free to make different  
>>>> software that includes some remnant of the Work, and claim that  
>>>> the license granted to users of the Work via the Apache License  
>>>> apply to my users as well.  It feels analogous to "making and  
>>>> selling copies" in the physical world.  (I realize how I feel is  
>>>> irrelevant...)
>>>
>>> Are you a user?  Then you have the license.  It is a comprehensive  
>>> license
>>> that covers all patent monopolizing activities, including making  
>>> and selling
>>> covered Works to others.
>>
>> Why do you use the phrase "covered Works"?  Why wouldn't you say  
>> "any software that infringes on the patent claims"?
>
> Because that's not what the AL says and you are asking about a non-CLA
> situation.

Roy refers to and later confirms the notion of "covered Work" as  
critically important to WHAT you can do with the license.

So the Geir-Is-A-Dull-Boy (GIADB) interpretation is - the patent  
license is not only shaped by the Work in determining which patents  
are involved, but a contribution made in the context of the Apache  
License is limited to how I can use the license (i.e. only in the  
context of the "covered Work").  If the contribution is made via the  
CLA, the foundation, and the foundation only, has a slightly broader  
license.

That's far different, at least to GIADB, from "you can anything you  
want with that patent license".

> I also bristle at the term 'infringing' here.  A give code base may
> implement functionality that 'reads on' a given patent.  We are only
> 'infringing' if we do so without a license.

Agreed - no suggestion of infringement was implied.   I always stumble  
over patent language :)

>
>
>> 3) the rights of downstream users are generally claimed to be  
>> virtually
>> unlimited due to the mantra of "patent exhaustion", a suspect claim  
>> since
>> Larry even told us to "not go there"
>
> Patent Exhaustion is a shorthand way of saying what Larry said, namely
> "Patent claims that were licensed to ASF under the CLA for the
> original project go with that contribution and can be practiced by
> anyone in licensed derivative works. ASF can practice those claims in
> any of its projects."

Now, I'll risk wading into the "stop thinking about derivative works"  
field of fire only because you brought it up, as this takes me back to  
my root question :

Given that the patent license granted by the AL is tied to the  
"covered Work" for both determining the set of patents covered in the  
patent license, as well as the scope in which the receiving human can  
use the patent license, I think that your statement above (as  
translated by me) :

   "A human that received a patent license for a covered Work can rely  
on
     the license to those claims for any arbitrary piece of software  
(aka "derivative work")"

conflicts with my interpretation of Roy's statement - that the license  
only applies to the covered Work (in the case of AL).

Clearly either one of you is wrong, or my interpretation of one or  
both of your statements is wrong.

geir

[I'm omitting the rest as I think that it's too early to cloud this  
with notice discussions.  Clearly that subject will soon follow.]


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