Subject: Re: Apple alters open-source licenses after criticism
From: Brian Behlendorf <brian@hyperreal.org>
Date: Fri, 23 Apr 1999 18:56:37 -0700 (PDT)

On Fri, 23 Apr 1999, Greg Broiles wrote:
> At 04:55 PM 4/23/99 -0700, Brian Behlendorf wrote:
> >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. 
> 
> Assuming that "claim" means lawsuit, Apple would have a very strong
> incentive to defend a suit brought against it - failure to do so would lead
> rapidly to a default judgement for the plaintiffs, which would put Apple in
> a very poor position with respect to both the plaintiff and its shareholders. 

Right.  In the license, it's unclear that "claim" meant a claim in a court
of law, even though it does explicitly state "until a final determination
of the claim is made by a court or governmental administrative agency of
competent jurisdiction" which seems to rule out the possibility of out of
court settlement.  I would have gone the other way - taken pains to make
it a "claim filed with the appropriate government agency", and then
un-suspended the license "when such a claim is resolved", or something.  

> It's possible to imagine that Apple might defend against a suit in a
> lackadaisical or disinterested fashion, but they'd only be able to do so to
> the extent that the plaintiffs and the court were similarly uninterested in
> a timely resolution. 

True.  It just seemed very poorly worded, which seemed odd because better
more precise wording wasn't hard to arrive at.

> >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.
> 
> Are you sure that contributory infringement is the only concern here? If a
> person or organization is distributing code which infringes someone's
> patent, I'd call that direct infringement, not contributory infringement,
> modulo swampy jurisdictional issues. (e.g., the patent is enforceable in
> the jurisdiction where the distributor is located - if not, contributory
> infringement might be a fall-back approach, but I don't think it'd be the
> first one.) 

I'm presuming that a court would find that if Apple immediately shut down
their FTP server and prevented people from downloading further copies of
the infringing code upon being notified of a claim, that would be
sufficient to avoid direct infringement.  That is different from
suspending the license, of course.  

I think my point remains, though, whether we are talking about
contributory or direct infringement - the fact is that other licenses
don't have this clause, and so far it doesn't appear that this has caused
any problems.

Thanks for the feedback, Greg.

	Brian