Subject: Re: Apple alters open-source licenses after criticism
From: Greg Broiles <gbroiles@netbox.com>
Date: Fri, 23 Apr 1999 18:26:47 -0700

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. 

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. 

>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.) 


--
Greg Broiles
gbroiles@netbox.com
PGP: 0x26E4488C