Subject: Re: APSL 1.1 available for comment.
From: "Ean R . Schuessler" <ean@novare.net>
Date: Mon, 19 Apr 1999 23:57:24 -0500

On Mon, Apr 19, 1999 at 09:21:42PM -0700, Brian Behlendorf wrote:
> Note that the last sentence of section 9.1 explicitly allows you to
> address the patent issue in that code yourself.  So even if they "play
> dead", if the code is important to you, you can fight for the patent
> yourself, and if you win, continue to use the code.  At least that's my
> reading.

But that is ever so blurry. Apple owns the copyright to the code
which has been suspended. The other party owns the patent. It
doesn't seem clear to me which "rights" you would be securing from
the other party.

The other party has no power to grant rights to Apple's copyrighted
code. They only have the power to grant rights to utilize the patent
that it may or may not infringe upon. Apple says it will only grant
the right to use their copyrighted code when:

  "Upon such final determination being made, if Apple is legally 
   able, without the payment of a fee or royalty, to resume use, 
   reproduction, modification, sublicensing and distribution of 
   the Affected Original Code, Apple will lift the suspension of
   rights to the Affected Original Code..."

This seems to indicate that even if I obtain rights to the patent
through some agreement of my own that I will not have the ability to
use the code until Apple's own legal situation is settled. In this
day of overly broad patents it is not unreasonable to imagine that
a situation might arise where my particular use of a given piece of
APSL code did not violate a given patent where Apple's did.

Say that we have some piece of encryption technology and some jackass
manages to patent the idea of using it in tandem with a messaging
protocol. I may be using it over HTTP, or IPC or some arcane crap of
my own creation that has no precedent in the normal world whereas
Apple is actually using the code in tandem with a messaging protocol.
So, even if I get a waiver from the company saying that in my case
the "affected code" is free and clear my ability to use it will still
have been terminated by Apple's predicament.

I still don't understand why Netscape's lawyers felt content to leave
the patents as another issue except for only very cursory
statements. Is the Mozilla public license that poorly architected?
It may very well be. But, it seems to me, that many copyright licenses 
I have read leave the patent issue as a seperate matter. I can see 
the "contributory infringement" thing, but man, I'm not sure that 
this is the answer.

I think that it is key to remember that much of this code may find a
home that is very remote from its point of origin and that, in the
case of our community, this is possibly the most important role of
the code. We need to regard the APSL'd work not so much as a
solid product that will remain whole but as a hive of components that
will potentially be subsumed and restructured by the community. I
think that in this sense my thoughts are not so far fetched.

-- 
___________________________________________________________________
Ean Schuessler                   An oderless programmer work-a-like
Novare International Inc.                     Silent and motionless
--- Some or all of the above signature may be a joke