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From "Sam Ruby" <ru...@intertwingly.net>
Subject Re: AL's patent license in the context of derivative works
Date Thu, 03 Apr 2008 17:00:41 GMT
On Thu, Apr 3, 2008 at 11:55 AM, Geir Magnusson Jr. <geir@pobox.com> wrote:
> Any chance someone can answer the question asked?

I may have missed one, but I see three questions.

Q: Can someone point me to a clear statement of the ASF's position
regarding the rights a user of a derivative work of an Apache project
has with respect to the patent licenses granted to the original
project by the contributors to the project?

A: Apparently not.  Perhaps a FAQ might be in order.

Q: Can someone encapsulate the theory behind this?

A: Copyrights apply to each act of copying.  Patents are subject to
Patent Exhaustion.  Since this seems to keep coming up, perhaps the
latter should be mentioned in a FAQ.

Q: can we just put that up on the FAQ?

A: Good idea!  How does this sound: [[[ Q: As a policy, does the ASF
permit projects to accompany distributions with notices that attempt
to limit the scope of Patent Exhaustion?  A: No. ]]] ?

- Sam Ruby

>  On Apr 3, 2008, at 11:16 AM, "Sam Ruby" <rubys@intertwingly.net> wrote:
>
>
> >
> >
> >
> > On Thu, Apr 3, 2008 at 11:06 AM, Geir Magnusson Jr. <geir@pobox.com>
> wrote:
> >
> > > I asked this earlier today on legal-internal, but Sam suggested I ask
> here
> > > instead.
> > >
> >
> > Would this work as an addition to the FAQ?
> >
> > Q: As a policy, does the ASF permit projects to accompany
> > distributions with notices that attempt to limit the scope of Patent
> > Exhaustion?
> >
> > A: No.
> >
> > - Sam Ruby
> >
> >
> > > Begin forwarded message:
> > >
> > > From: "Geir Magnusson Jr." <geirm@apache.org>
> > > Date: April 3, 2008 7:01:20 AM EDT
> > > To: legal-internal@apache.org
> > > Subject: AL's patent license in the context of derivative works
> > > Reply-To: legal-internal@apache.org
> > >
> > >
> > >
> > > I always shed bitter tears of frustration and rage when I think about
> this
> > > :)  and I'm sorry to bring it up again.
> > >
> > > Can someone point me to a clear statement of the ASF's position
> regarding
> > > the rights a user of a derivative work of an Apache project has with
> respect
> > > to the patent licenses granted to the original project by the
> contributors
> > > to the project?
> > >
> > > I am of the apparently mistaken opinion that there are limits - that one
> > > can't take an Apache codebase, make arbitrary modifications, and assert
> a
> > > license the same patent rights from contributors to the original Work
> that
> > > users of the original Work can.
> > >
> > > When I read
> http://www.apache.org/foundation/licence-FAQ.html#PatentScope I
> > > get confused.  I see :
> > >
> > >   "...  Once a patent claim is subject to Apache's Grant of Patent
> > > License,
> > >     it is licensed under the terms of that Grant to the ASF and to
> > > recipients
> > >     of any software distributed by the ASF for any Apache software
> product
> > >     whatsoever."
> > >
> > > I'll note that we say
> > >
> > >  "... and to recipients of any software distributed by the ASF
> > >   for any Apache software product whatsoever."
> > >
> > > which to me is radically different from
> > >
> > >  ".. and to recipients for any derivative work the recipients may choose
> > > to make and distribute whatsoever."
> > >
> > > I hope you can see my confusion on this matter.
> > >
> > > Can someone encapsulate the theory behind this?  I was trying to read
> back
> > > through the [years of] discussion that resulted in this statement, but
> don't
> > > grok it as it seems to hinge on the hope that the Contribution was made
> by
> > > someone who signed the CLA, for a few reasons.  First, the CLA broadly
> > > defines "Work" as
> > >
> > >   "any of the products owned or managed by the Foundation (the "Work")"
> > >
> > > whereas the Apache License  defines it another, and to me, very
> different
> > > (and admittedly unclear) way :
> > >
> > >     "Work" shall mean the work of authorship, whether in Source or
> > >     Object form, made available under the License, as indicated by a
> > >     copyright notice that is included in or attached to the work
> > >     (an example is provided in the Appendix below).
> > >
> > > Further, I interpret the Copyright and Patent Grants in the Apache
> License
> > > as between the Contributor and "You" (the recipient) :
> > >
> > >   "2. Grant of Copyright License. Subject to the terms and conditions of
> > >     this License, each Contributor hereby grants to You..."
> > >
> > >   "3. Grant of Patent License. Subject to the terms and conditions of
> > >     this License, each Contributor hereby grants to You...
> > >     where such license applies only to those patent claims licensable
> > >     by such Contributor that are necessarily infringed by their
> > >     Contribution(s) alone or by combination of their Contribution(s)
> > >     with the Work to which such Contribution(s) was submitted."
> > >
> > > whereas the CLA's language has :
> > >
> > >  "2. Grant of Copyright License. Subject to the terms and conditions of
> > >      this Agreement, You hereby grant to the Foundation and to
> > >       recipients of software distributed by the Foundation..."
> > >
> > >  "3. Grant of Patent License. Subject to the terms and conditions of
> > >     this Agreement, You hereby grant to the Foundation and to
> > >     recipients of software distributed by the Foundation..."
> > >
> > > where I read the AL version of the patent license as being to the Work
> > > specifically, whereas the CLA broadens to "software distributed by the
> > > Foundation".
> > >
> > > Finally, I note that in both cases (AL and ICLA), the Grant of Copyright
> > > license is explicit in it's grant of rights to make, perform, distribute
> > > Derivative Works, and the Grant of Patent License omits of any such
> > > language.
> > >
> > > I'm ready to be told I'm a moron and it's obvious (I've been assured
> that
> > > this is a settled question).  If so, can we just put that up on the FAQ?
> it
> > > will give me something to refer to :)
> > >
> > > Thanks
> > >
> > > geir
> > >
> > >
> > >
> > >
> > >
> > >
> >
> > ---------------------------------------------------------------------
> > DISCLAIMER: Discussions on this list are informational and educational
> > only.  Statements made on this list are not privileged, do not
> > constitute legal advice, and do not necessarily reflect the opinions
> > and policies of the ASF.  See <http://www.apache.org/licenses/> for
> > official ASF policies and documents.
> > ---------------------------------------------------------------------
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> > For additional commands, e-mail: legal-discuss-help@apache.org
> >
> >
>
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