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From Jim Wright <jim.wri...@oracle.com>
Subject Re: Proposal: Disclosure of patents by Apache projects
Date Thu, 21 May 2015 22:42:31 GMT
Larry, were you only to be giving them information they otherwise lacked, without other consequence
for their possession of that information, that might or might not be a worthwhile goal, but
it seems to me that you might be placing end users in the unwanted position of suffering enhanced
damages for willful infringement by providing the notices you suggest, or forcing them to
spend money obtaining opinions on infringement and validity before use.  Thoughts?  

While the goal of additional information is laudable, I might suggest that if you're going
to tell people about patent threats at all (something which requires careful thought vis-a-vis
privilege and other issues), you do so only if they specifically ask the ASF, rather than
in the NOTICE file.  This way each org can make its own decisions about how to handle this
issue.

 Regards,
  Jim

> On May 21, 2015, at 11:51 AM, 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.
>  
> On the other hand, we have a NOTICE file and we owe our customers whatever the facts
are.
>  
> I'm looking for agreement by our customers to this NOTICE policy in a very antagonistic,
patent-hating Apache community.
>  
> /Larry

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