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From "Lawrence Rosen" <lro...@rosenlaw.com>
Subject RE: Proposal: Disclosure of patents by Apache projects
Date Thu, 21 May 2015 20:21:14 GMT
Sam Ruby wrote:
> You are welcome to speak for yourself, but you do not speak for the
> Apache community on this matter.

Absolutely true, and I do speak for myself. We each bring our separate value to this thread.

> If we became aware of a specific patent that appeared to be valid,
> enforceable, read on an Apache project, and the owner was unwilling
> to license that patent to us under terms that enable us to release
> our code under the terms of the Apache License, Version 2, then we
> would take appropriate action.  In extreme cases, that could include
> killing the product outright.  Nothing 'simple' or automatic about that.

That proves my point. From your resume I can determine that you are unqualified to determine
any of that.

You are supremely qualified to write a NOTICE file.

/Larry


-----Original Message-----
From: Sam Ruby [mailto:rubys@intertwingly.net] 
Sent: Thursday, May 21, 2015 12:57 PM
To: Lawrence Rosen
Cc: Legal Discuss
Subject: Re: Proposal: Disclosure of patents by Apache projects

On Thu, May 21, 2015 at 2:51 PM, Lawrence Rosen <lrosen@rosenlaw.com> wrote:
> To: legal-discuss@apache.org
>
> Elsewhere on internal Apache member email lists we've been discussing 
> a patent that may or may not apply to Apache software. I already 
> quoted publicly the strongly-held opinion of one Apache member that 
> "this patent is just plain BS, IMHO." He may be right.
>
> My concern is that Apache members are not qualified to make this 
> determination about any patent. Nor is the Apache Software Foundation 
> resourced to do that analysis professionally for our users.
>
> However, I believe that ASF is obligated to disclose whatever patent 
> information comes to our developers' and members' attention. This is 
> one of the key purposes of a NOTICE file in open source software.
>
> Others disagree strongly. Here is what Roy Fielding wrote here on 27 
> Mar
> 2012: http://s.apache.org/B3F. I quote part of it now:
>
>
> It has been discussed.  This idea is the moral equivalent of pointing 
> a gun at our user while saying that it is most likely unloaded.  It 
> simply isn't done.
>
> Adobe has not asked for it to be done.  The only company that has ever 
> asked for it to be done is Sun, and we not only refused to do so -- we 
> exited the entire Java community process because of it.
>
> So, the answer to your suggestion is well known.  Sam knows that answer.
> He does not need to discuss it with you or anyone else because there 
> is already a long history behind it and a board precedence.  We do not 
> notify our users that an unspecified patent might possibly be owned by 
> some third-party based on a theoretical reading of a patent license on 
> a specification that we don't even implement.  If that third-party 
> identifies a specific patent AND indicates that the patent might apply 
> to our product, then we would include information about that in a 
> README file (assuming we didn't kill the product outright).
>
>
> As a non-patent but practicing attorney, I don't believe I'd ever 
> personally recommend that we kill an international Apache project 
> outright simply because someone pointed a US patent gun at it.

Nor would we.  I'll also note that that is not what Roy said.

Our policy is that "The Apache Software Foundation is a nonprofit organization that is dedicated
to open source software development. We never knowingly incorporate patented technology in
our own products unless such technology has been offered free for everyone."

If we became aware of a specific patent that appeared to be valid, enforceable, read on an
Apache project, and the owner was unwilling to license that patent to us under terms that
enable us to release our code under the terms of the Apache License, Version 2, then we would
take appropriate action.  In extreme cases, that could include killing the product outright.
 Nothing 'simple' or automatic about that.

> On the other hand, we have a NOTICE file and we owe our customers 
> whatever the facts are.

We also have  README file.

The question Roy addressed is whether or not we should include in the README information about
an "unspecified patent might possibly be owned by some third-party based on a theoretical
reading of a patent license on a specification that we don't even implement".

> I'm looking for agreement by our customers to this NOTICE policy in a 
> very antagonistic, patent-hating Apache community.

You are welcome to speak for yourself, but you do not speak for the Apache community on this
matter.

> /Larry

- Sam Ruby


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