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> The only downside to apache is that the defensive patent termination clause only terminates patent rights. If there were no patents on the software, and they

> The only downside to apache is that the defensive patent termination clause only terminates patent rights. If there were no patents on the software, and they sue you over patents, they can go right on using it. IANAL - could you explain what you mean by this?

DannyBee 13y ago
Sure: Apache grants a patent license and a copyright license. The patent license (but not the copyright one) terminates if i sue you. So right now the situation is: You license your stuff under apache. It has no patents on it. I sue you for patent infringement. I can still use your stuff, since the only thing that got terminated was the patent license I had received. There are no patent rights, so nothing was really terminated. So in effect, I can sue you without worrying about how it impacts my ability to use your software. This is true of most current open source licenses, btw. Suing does not terminate anything. A better situation would be: Apache grants a patent license and a copyright license. Both patent and copyright license grants terminate if i sue you for patent infringement. Then it would be You license your stuff under apache. It has no patents on it. I sue you for patent infringement. I can't use your software anymore. The problem is such termination clauses are at the very least GPLv2 incompatible (They have been tried). Because everyone wants license compatibility, and people like GPLv2, nobody can really make this situation. In fact, it makes the situation worse. Worse than this, what ends up happening, often, is that Apache 2 projects (which provide some protection at least if you own patents, since you can countersue) get pressured by GPL projects to move to a less protective licenses. See, e.g., https://github.com/twitter/bootstrap/issues/2054 https://github.com/twitter/bootstrap/issues/2054 This was, IMHO, a bad move for the Bootstrap project (full disclosure - the company I work for refused to let Bootstrap relicense the code we contributed because we viewed this as harmful to the open source ecosystem. This is/was drupal's problem, not Bootstrap's, and you shouldn't make a bad licensing decision to make up for another)
- chimeracoder 13y ago
  Ah, I see the distinction that you're making, though I would disagree with the statement that the latter situation is "better". If I'm release software with that clause, I'm in a position to take advantage of anybody who uses the software, because they would have to cease using it before they could sue me, even on legitimate grounds. That said, I'm not surprised that you (as a lawyer) would prefer the latter; it exposes your client to less liability, and lawyers tend to be very risk-averse, for obvious reasons.
  - DannyBee 13y ago
    You gave them software for free, it's not clear what legitimate grounds you want to accept liability for, but that's up to you :) Given the "get sued by people over patents for releasing popular open source software" occurs very often for companies that deal with open source software and have money, ... As for risk aversion, I am probably one of the least risk averse lawyers you will meet. My goal in this case is not to protect my clients, my goal is to see the open source ecosystem stop being destroyed for dumb reasons.
    - chimeracoder 13y ago
      Nevermind, I just re-read the text of v2, and it seems more limited in scope that what I previously thought. > If You institute patent litigation against any entity (including a cross-claim or counterclaim in a lawsuit) alleging that the Work or a Contribution incorporated within the Work constitutes direct or contributory patent infringement, then any patent licenses granted to You under this License for that Work shall terminate as of the date such litigation is filed. I was also trying to thing of some pathalogical edge case in which I release something under an Apache license in order to preempt a lawsuit that I've infringed on someone else's patent... but I guess that doesn't make sense, since that would require that they accept the terms of the license to begin with. So, I guess that's not really as much of a problem as I thought.

DannyBee 13y ago

Sure: Apache grants a patent license and a copyright license. The patent license (but not the copyright one) terminates if i sue you. So right now the situation is: You license your stuff under apache. It has no patents on it. I sue you for patent infringement. I can still use your stuff, since the only thing that got terminated was the patent license I had received. There are no patent rights, so nothing was really terminated. So in effect, I can sue you without worrying about how it impacts my ability to use your software. This is true of most current open source licenses, btw. Suing does not terminate anything. A better situation would be: Apache grants a patent license and a copyright license. Both patent and copyright license grants terminate if i sue you for patent infringement. Then it would be You license your stuff under apache. It has no patents on it. I sue you for patent infringement. I can't use your software anymore. The problem is such termination clauses are at the very least GPLv2 incompatible (They have been tried). Because everyone wants license compatibility, and people like GPLv2, nobody can really make this situation. In fact, it makes the situation worse. Worse than this, what ends up happening, often, is that Apache 2 projects (which provide some protection at least if you own patents, since you can countersue) get pressured by GPL projects to move to a less protective licenses. See, e.g., https://github.com/twitter/bootstrap/issues/2054 https://github.com/twitter/bootstrap/issues/2054 This was, IMHO, a bad move for the Bootstrap project (full disclosure - the company I work for refused to let Bootstrap relicense the code we contributed because we viewed this as harmful to the open source ecosystem. This is/was drupal's problem, not Bootstrap's, and you shouldn't make a bad licensing decision to make up for another)

chimeracoder 13y ago
Ah, I see the distinction that you're making, though I would disagree with the statement that the latter situation is "better". If I'm release software with that clause, I'm in a position to take advantage of anybody who uses the software, because they would have to cease using it before they could sue me, even on legitimate grounds. That said, I'm not surprised that you (as a lawyer) would prefer the latter; it exposes your client to less liability, and lawyers tend to be very risk-averse, for obvious reasons.
- DannyBee 13y ago
  You gave them software for free, it's not clear what legitimate grounds you want to accept liability for, but that's up to you :) Given the "get sued by people over patents for releasing popular open source software" occurs very often for companies that deal with open source software and have money, ... As for risk aversion, I am probably one of the least risk averse lawyers you will meet. My goal in this case is not to protect my clients, my goal is to see the open source ecosystem stop being destroyed for dumb reasons.
  - chimeracoder 13y ago
    Nevermind, I just re-read the text of v2, and it seems more limited in scope that what I previously thought. > If You institute patent litigation against any entity (including a cross-claim or counterclaim in a lawsuit) alleging that the Work or a Contribution incorporated within the Work constitutes direct or contributory patent infringement, then any patent licenses granted to You under this License for that Work shall terminate as of the date such litigation is filed. I was also trying to thing of some pathalogical edge case in which I release something under an Apache license in order to preempt a lawsuit that I've infringed on someone else's patent... but I guess that doesn't make sense, since that would require that they accept the terms of the license to begin with. So, I guess that's not really as much of a problem as I thought.