Subject: Re: APSL 1.1 available for comment.
From: Gabe Wachob <gwachob@findlaw.com>
Date: Mon, 19 Apr 1999 18:47:29 -0700

Brian Behlendorf wrote:

>
> I think a lot of issues around the patent problems can be summed up this
> way: what developers want, and what they (incorrectly) think they have
> under other licenses, is code that is patent-free.  Sorry, it doesn't work
> like that; any software, under any license, can come under a claim of
> patent infringement by a patent holder, at which point it is incumbent on
> the infringing entity (anyone the patent holder chooses to sue - and
> unlike trademarks, patents don't go away if you selectively enforce them)
> to stop infringing, and do what they can to prevent others whom they
> enabled to infringe to stop infringing as well.

Thats the gist of it. For a commercial company to put out code, it has the
responsibility not to contributorily infringe patents. Apple is simply trying to
cover its butt -- look at what happens if they don't have this sort of withdrawal
clause:

1) Apple puts out code
2) Joe Open Source developer downloads code and builds great tools for everyone to
use
3) Apple is notified of valid claim of patent infringement on some of the code
4) Apple notifies Open Source community that it is terminating the license (because
if it doesn't, a court will step in and that could get expensive and ugly)
5) The open source community feels slighted by the act of Apple "unlicensing" open
source material (but the open source community has no legal resource except for
those people who contribute back code to Apple because there is no consideration
given by the open source community -- thats a legal speculation which I believe is
pretty solid, but would have to be tested in court).
6) Apple feels trapped between a rock and a hard place and discontinues placing code
in an open source status
7) The open source community loses out

I guess what I'm saying is that the patent infringement terms really only serve a
communicative purpose -- that Apple does NOT warranty the source code to be free of
possible patent claims and that the risk is on the open source user/developer that
the code *may* be patent-infringing. This is no different, in function, than any
other open source license -- the only difference is that Apple is spelling it out.
My contracts professor had a view that contracts are mostly about allocation of
risks - indeed this to me seems nothing more than an explicit allocation of risk.

The plus side for Apple is that they can claim that they notified the open source
users/developers about the potential patent problem and Apple, by virtue of this
term, has an easier time of preventing use of patent-infringing code.  As Brian
points out, the open source user/developer must cease using the code whether or not
Apple terminates the license to use that code (thats patent law).

It seems to me that terms which give explicit protection to the commercial providers
of open source software, while not materially limiting the use of the software per
the OSD, should be *encouraged* so as to lower to perceived risk associated with the
release of software in to the "Open Domain" (as I call it).


> If you don't like that
> situation, there are three things you can do:
>
>   a) Lobby the USPTO (or your representatives in Congress, if you're in
> the US) to create a "patent clearing" service, where you can submit code
> for a fee and have it either declared "patent-immune", meaning no patent
> claim may be applied to it, or be given a list of patents which it may
> infringe.  Of course, the USPTO is likely to not want to do something like
> this, because then the liability for an incorrect assessment will be on
> them.

Thats not going to happen -- the patent system would fall apart and all sorts of
people would cry foul instantly.

>   b) Lobby Congress to reduce the length of time alloted for patents on
> software algorithms from 17 years to something more reasonable for this
> industry, like 4.  Or pick your favorite number.  17 is just insane, I
> think we can all agree.

Its actually 20 now. And yes, its insane for software.

>   c) Create a patent clearinghouse project, so you can cross-license
> patents with patent holders, e.g. "let us use yours and you can use ours".
> There are a couple projects like this, I think - I'm sure someone else has
> URL's.

Well, would an opensource group have anything to cross license to a holder of a
shared memory pool patent-holder, for example? Isn't there an extreme asymmetry in
bargaining power between the open source community and most patent holders?

    -Gaeb