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From "Geir Magnusson Jr." <g...@pobox.com>
Subject Fwd: AL's patent license in the context of derivative works
Date Thu, 03 Apr 2008 15:06:55 GMT
I asked this earlier today on legal-internal, but Sam suggested I ask  
here instead.


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
>
>
>


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