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From Sam Ruby <ru...@intertwingly.net>
Subject Re: Proposal: Disclosure of patents by Apache projects
Date Thu, 21 May 2015 19:56:34 GMT
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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