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From "Sam Ruby" <ru...@intertwingly.net>
Subject Re: AL's patent license in the context of derivative works
Date Fri, 04 Apr 2008 12:35:08 GMT
On Fri, Apr 4, 2008 at 8:04 AM, Geir Magnusson Jr. <geir@pobox.com> wrote:
>
>  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) :

I think that's reading slightly more into what Roy said than he may
have intended.

Clearly if you incorporate the embodiment of patent into your work
based on a license that gives you permission to do so, then you aren't
liable for infringing on that patent by so doing.  The further you
deviate from that scenario the more that you are depending on the
actual terms of the license, and determination of the "intent" of the
owner of the patent behind providing you that license.

> 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.

I think that is overreaching.

What matters is the patentee's intent with respect to enforcement.
Once a patent owner has voluntarily made a patent available under open
terms, people may make assumptions as to whether or not the original
owner intends to enforce their patent.  The "covered Work", the
license for the same, as well as other information (such as notices
which apparently we will talk about shortly) may (or may not) be
factors that help determine that intent in the event of a dispute.

> 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".

You are certainly never dull.

We make it clear what we intend to do with contributions so that
people can make informed decisions as to whether or not they wish to
contribute.

> 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 :

I'll point out that it was Larry who did so.  And I will note that he
did not imply in any way that the fact that a work may be a derivative
work (in the copyright sense) is any any way germane to the
determining who can practice those claims, and where.  In fact, in the
very next statement, he makes the case that the "derivitive-ness" is
not particularly relevant.

> 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.

I think that the apparent conflict is a consequence of your inserting
the word "only" into your interpretation of Roy's statement.

> 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.]

I look forward to it.

- Sam Ruby

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