4 ms·

I'd prefer Apache with its patent clause but what can you do?

by mordocai 11y ago

k__ 11y ago
Care to elaborate?
- viraptor 11y ago
  If you publish something using apache license you grant users the right to use your patents that cover this software. When you publish under MIT, you can still keep a patent and sue any user.
  - nchelluri 11y ago
    Can you explain how this works in more detail? If I use someone's MIT license code that has patented stuff in it, does that make me a potential target? Seems hard to justify using MIT licensed code in that case?
    - viraptor 11y ago
      That's right. MIT does not protect you from any patent-related legal action. It's not that hard to justify though - it's the same for BSD and MIT/BSD has been used for ages. Both Apache and GPL grant patent use to everyone. I'd paste the relevant bit, but it's stupid-law-level-long. Point 3 in https://www.apache.org/licenses/LICENSE-2.0.txt https://www.apache.org/licenses/LICENSE-2.0.txt - also see the exploding trap at the end of that point. You cannot sue the author for patent reasons.
      - carussell 11y ago
        Please don't say things like, "MIT does not protect you from any patent-related legal action." It isn't that the MIT License is known to provide no protection; rather, it's unknown whether the MIT License provides protection. The MIT License contains strong wording to suggest it may very well provide protection against patents, but it's untested and not quite as strong as the patent grant in, say, Apache 2.0. It's a matter of knowns and unknowns. Consequently, this is why the MIT License and the BSD License should not be lumped together.
    - king_of_nouns 11y ago
      > Seems hard to justify using MIT licensed code in that case? It doesn't.. It's what MS essentially had prior to opensourcing .net proper. They had some parts of it the library that were free, and some parts that were hands-off or we'll sue you. It makes sense to try and lure people in at first with "free" and then scare them into buying licences if they ever manage to get big.
  - kemitchell 11y ago
    The MIT License does not use the word "patent", but there are good arguments that MIT grants at least an implied patent license, perhaps even a (limited) express patent license. "Implied patent license" is the search string if you want to read more. Apache version 2.0, on the other hand, has an express patent license. There are very good reasons to prefer an express patent license.
    - mcherm 11y ago
      > there are good arguments that MIT grants at least an implied patent license, perhaps even a (limited) express patent license. I have not heard such arguments before. Can you provide a link to someplace where these legal arguments are explained?
      - kemitchell 11y ago
        I don't know a single online source worthy of recommendation, so I'm afraid you'll have to do your own searching. But in a nutshell, at least under US law: 1. The permission language "deal in the Software without restriction" is very broad. 2. Of the more specific, enumerated permissions "use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of" the terms "copy", "modify", "publish", "distribute", and "copies" speak to the exclusive rights of copyright owners per United States Code title 17, section 106. The terms "use" and "sell" speak to things you can sue for under a patent per United States Code title 35, section 271. The term "sublicense" is generic to licenses of all kinds, including copyright licenses and patent licenses. 3. There is also a legal idea called "estoppel" that prevents, broadly speaking, leading people to believe they can violate your rights freely and then suing them, or taking back or shrinking permission that you've already granted. State Contracting and Engineering Corporation v. Florida, decided by the United States Court of Appeals for the Federal Circuit, is an interesting case in the patent context. You might find a summary online, if you haven't time to trawl through the court's written opinion. To quote Larry Rosen, from his book Open Source Licensing: > Be careful about implied licenses. An implied license is necessarily vague and incomplete. The terms and conditions of an implied license may not be clear to either the licensor or the licensee. Reliance on an implied license is particularly risk when important property interests are at stake. If you're worried about an implied license for a specific reason, please talk to your company's legal or engage an attorney. It's going to require a judgment call, and you want someone on your side who will consider a lot more than what I've mentioned here in coming up with good advice.

I'd prefer Apache with its patent clause but what can you do?

k__ 11y ago

Care to elaborate?

viraptor 11y ago
If you publish something using apache license you grant users the right to use your patents that cover this software. When you publish under MIT, you can still keep a patent and sue any user.
- nchelluri 11y ago
  Can you explain how this works in more detail? If I use someone's MIT license code that has patented stuff in it, does that make me a potential target? Seems hard to justify using MIT licensed code in that case?
  - viraptor 11y ago
    That's right. MIT does not protect you from any patent-related legal action. It's not that hard to justify though - it's the same for BSD and MIT/BSD has been used for ages. Both Apache and GPL grant patent use to everyone. I'd paste the relevant bit, but it's stupid-law-level-long. Point 3 in https://www.apache.org/licenses/LICENSE-2.0.txt https://www.apache.org/licenses/LICENSE-2.0.txt - also see the exploding trap at the end of that point. You cannot sue the author for patent reasons.
    - carussell 11y ago
      Please don't say things like, "MIT does not protect you from any patent-related legal action." It isn't that the MIT License is known to provide no protection; rather, it's unknown whether the MIT License provides protection. The MIT License contains strong wording to suggest it may very well provide protection against patents, but it's untested and not quite as strong as the patent grant in, say, Apache 2.0. It's a matter of knowns and unknowns. Consequently, this is why the MIT License and the BSD License should not be lumped together.
  - king_of_nouns 11y ago
    > Seems hard to justify using MIT licensed code in that case? It doesn't.. It's what MS essentially had prior to opensourcing .net proper. They had some parts of it the library that were free, and some parts that were hands-off or we'll sue you. It makes sense to try and lure people in at first with "free" and then scare them into buying licences if they ever manage to get big.
- kemitchell 11y ago
  The MIT License does not use the word "patent", but there are good arguments that MIT grants at least an implied patent license, perhaps even a (limited) express patent license. "Implied patent license" is the search string if you want to read more. Apache version 2.0, on the other hand, has an express patent license. There are very good reasons to prefer an express patent license.
  - mcherm 11y ago
    > there are good arguments that MIT grants at least an implied patent license, perhaps even a (limited) express patent license. I have not heard such arguments before. Can you provide a link to someplace where these legal arguments are explained?
    - kemitchell 11y ago
      I don't know a single online source worthy of recommendation, so I'm afraid you'll have to do your own searching. But in a nutshell, at least under US law: 1. The permission language "deal in the Software without restriction" is very broad. 2. Of the more specific, enumerated permissions "use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of" the terms "copy", "modify", "publish", "distribute", and "copies" speak to the exclusive rights of copyright owners per United States Code title 17, section 106. The terms "use" and "sell" speak to things you can sue for under a patent per United States Code title 35, section 271. The term "sublicense" is generic to licenses of all kinds, including copyright licenses and patent licenses. 3. There is also a legal idea called "estoppel" that prevents, broadly speaking, leading people to believe they can violate your rights freely and then suing them, or taking back or shrinking permission that you've already granted. State Contracting and Engineering Corporation v. Florida, decided by the United States Court of Appeals for the Federal Circuit, is an interesting case in the patent context. You might find a summary online, if you haven't time to trawl through the court's written opinion. To quote Larry Rosen, from his book Open Source Licensing: > Be careful about implied licenses. An implied license is necessarily vague and incomplete. The terms and conditions of an implied license may not be clear to either the licensor or the licensee. Reliance on an implied license is particularly risk when important property interests are at stake. If you're worried about an implied license for a specific reason, please talk to your company's legal or engage an attorney. It's going to require a judgment call, and you want someone on your side who will consider a lot more than what I've mentioned here in coming up with good advice.