Subject: RE: Compatibility of the AFL with the GPL
From: "Lawrence E. Rosen" <lrosen@rosenlaw.com>
Date: Wed, 12 Mar 2003 14:19:00 -0800

Brian,

First, as to the Mutual Defense provision and its "compatibility" with
the GPL:

Person A writes W and licenses it to everyone under the AFL.  Person B
comes along and, in the true spirit of free software, creates and
distributes collective work W+X and derivative work W' under the GPL.
No surprises for B.  He's read the AFL and the GPL and he understands
that he's doing what's allowed.

Person C gets a copy of W+X or W'.  He knows it is GPL software.  Person
C now wants to sue Person A for patent infringement by W.  He reads W's
license and discovers the Mutual Defense provision.  He must evaluate
his risk of losing rights to copy, modify or distribute W, W+X and W',
and any other W-based software, if he sues A.  What's wrong with making
him evaluate that risk before suing for patent infringement?  It's his
patent, and he's (perhaps) within his rights to sue Person A for
infringement.  But as the author of an open source license, I don't have
to make that easy or cheap for him to do.

Perhaps the LICENSE file of any GPL-licensed work that contains an
AFL-licensed component should contain a warning notice:  

   WARNING: Your license to this work may automatically terminate
   if you sue Person A for patent infringement.  That is because
   this work contains a component that is licensed to you by Person A
   under the AFL.  You get to decide whether a patent infringement 
   lawsuit against Person A is worth the loss of your rights to 
   copy, modify or distribute Person A's contribution to this software.

You're right in suggesting that the GPL has fostered a spirit of license
trust, and that is wonderful.  I'm seeking compatibility between the AFL
and the GPL because I want to share in that good will and to encourage
people to release source code that can be incorporated into GPL-licensed
programs -- as well as into proprietary and other open source programs.


The mutual defense provision of the AFL doesn't detract from that goal.
It just causes those who would sue free and open source software for
patent infringment to do their homework first and to recognize that it
is no longer cheap and risk-free to do so.  They only have to "crawl
through the source code" if they elect to sue OSI Certified open source
software for patent infringement.  What's wrong with that?

***************

Second, as to the trademark provision of the AFL:

I recognize that there is inevitable confusion when one adds a new
concept to the world of the GPL.  But I've been following open source
businesses for a while -- not as long as you, I admit! -- and I now
recognize that the real source of success and profit for open source
contributors and businesses is their trademarks, not just their
copyrights.  Contributors to free software create brand names and
personal reputations [Linux (and GNU/Linux!), Apache, Red Hat, JBoss,
OSI Certified, Free Software Foundation, RMS, Behlendorf] that we need
to protect.  

I don't control the GPL so I can't do anything but encourage RMS to put
a meaningful protection for trademarks into his license.  But I do
control the AFL, and I insist upon the importance of warning licensees
that our brand names and our reputations are not included for free with
our copyright licenses.  That's not how this community works, and our
licenses should make it explicit.

That's not contradictory in any way to the GPL.  You found such a
trademark provision was helpful to the Apache Foundation, and quite
frankly, I knew to write a trademark provision because of your lead.  So
please don't try to talk me out of doing what you already did so
successfully. 

***************

Finally, your question about adding whitespace to an AFL-licensed
program and re-licensing it under the Apache license:

I don't understand why that is confusing or of concern.  Anyone who
picks up the code-plus-whitespace and uses it under the Apache license
or the GPL has nothing to fear from Person A.  All relevant licenses are
open source and free.  If Person B wants to create W+X or W', he must
read the license for W and any other notices in the source code.
There's nothing hidden from him.  His customers certainly don't need to
look behind the Apache or GPL license under which they received their
software.  If Person C wants to create W+X+Z or W'', he must read the
licenses and any other notices in the source code.  Person C's customers
don't need to look behind their license from C.  Each of those people
will be informed of the license terms applicable to them and will be
told that the source code is available.  What more could anyone want?

Of course, if anyone in that chain wants to sue Person A for patent
infringement by W....  But I already told that story.

/Larry

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