Subject: Re: Apple alters open-source licenses after criticism
From: Brian Behlendorf <brian@hyperreal.org>
Date: Fri, 23 Apr 1999 16:55:07 -0700 (PDT)


On Fri, 23 Apr 1999, Mike Olson wrote:
> There's an article on CNN on changes that Apple has made to its Open
> Source licensing policy.  Key points:
> 
> 	+  The license can no longer be terminated if the licensee
> 	   sues Apple for IP infringement.  It can, however, be
> 	   suspended until any such suit is resolved in the courts.

Of course, Apple isn't compelled to defend the code that ends up being the
subject of a claim - which means the code might be indefinitely suspended.
This is taking the paranoid stance perhaps, but it's not like Apple hasn't
dramatically shifted priorities from time to time. 

The license also contains unclear language as to whether a licensee can
actually resolve the issue on their own without Apple.  It says in
section 9.1:

  If Apple suspends Your rights to Affected Original Code,
  nothing in this License shall be construed to restrict You, at Your
  option and subject to applicable law, from replacing the Affected
  Original Code with non-infringing code or independently negotiating for
  necessary rights from such third party. 

So, does that mean Apple's suspension no longer applies to you, if you
address the issues that caused the suspension?  The answer may be that
that is clearly Apple's intent, but then why the slippery language?

A more onerous issue, though, is that in this license, Apple is
essentially raising the bar for what is considered an acceptable action to
avoid contributory patent infringement.  Ask yourself this: if you were
the author/maintainer of code licensed under the GPL, BSD, etc etc
licenses, and you received a letter from someone claiming to be the holder
of a patent which code in your software violates and demanding royalties,
you would probably (in order:)

a) Notify your community "there's a potential patent issue with this
code, we need help asserting its validity and if necessary replacing it"

b) Presuming the claim is seen to be valid, endeavor to quickly
remove/replace the code, or cross-license another patent with the patent
holder.

c) As soon as a new version of your code was ready that addressed
any/all issues, release it, and strongly ask other users to upgrade to the
newer code.

This might not be ideal as seen by the patent holder, since that means
there will still be people using his/her patent for the intermediate time
until a new version was available, as well as for the period of time until
everyone upgrades (which may be never, as people tend to run old code for
a long time).  However, so long as this is considered by the courts to be
a reasonable best-effort to address the patent holder's claims, there
would probably be no liability for contributory infringement.  

None of this has been tested in court, though, to the best of my knowlege.
The closest I can think of this possibly happening is with RSA patents,
but I'm not aware of anything being taken to court along these lines.
John?


From this point, though, Apple's license raises the bar for what an open
source project *should* do to address a patent claim.  It may be seen by a
court (or jury) that the "reasonable best-effort" (not a quote from law,
just quoted to correlate with my previous use) would be instead to yank
the code from the public arena as soon as a claim was posted.  This is
transferring a tremendous amount of power to a patent holder from what
they have today in this space, and I'm not comfortable with the precedent
this sets.  

Is *anyone* aware of case history that may have caused Apple's lawyers to
put in this clause?  I certainly understand and respect Apple's desires to
limit its contributory infringement liability; however, there must be a
reason why previous license authors didn't see a need to have a suspension
clause, and it's not because the institutions with their name on the
license weren't big liability targets.

Other than this section, I think it's a decent license.  Though I'm just
about finished with the idea that the world could use more licenses.

	Brian