Re: bsd license question

[Ben Goren <ben@trumpetpower.com>]

On 2005 Mar 1, at 1:35 AM, Dirk-Willem van Gulik wrote:

>> There's no reason that clause should be in the license
>
> So you are arguing that for any and all contributions - even those  
> coming
> inn through the mailing lists and bug trackers one would need a CLA on
> file in that case as to assure no submnarine issues.
>
> And would you then -still- keep any of the contributor text in the  
> license
> (e.g. just removing the last line of clause 3) ?

*sigh*

Let me try again.

The question of patents is one between you and the people who  
contribute to Apache. It is *not* between you and the people who *use*  
Apache. By inserting contributor/patent language into the *use*  
license, you have opened a really, really nasty can of worms.

You have no business discussing patents with your users, unless you  
wish to be so generous as to indemnify them against patent litigation  
arising from their use of Apache.

You have every right to insist that your contributors give you code in  
good faith. That might mean executing a legal contract with somebody  
before you even listen to their suggestion to fix a typo. Or, it might  
mean having a word with IBM, Apple, Amazon, and some of the other big  
boys who like you and getting some sort of an understanding with them  
that they'll dogpile on anybody who does something nasty. Exactly what  
it means depends on what lets you best sleep at night.

(I don't think Theo looses sleep over patents. Perhaps he'd be willing  
to share his secret.)

To top it all off, if a patent holder freely gives you code without  
first binding you to a patent license agreement, and you can document  
such a fact, any lawyer worth his salt should have no trouble  
convincing a court that the act of giving the code in the first place  
included a grant of license. Your only worry should be about people who  
*don't* own patents giving you code that infringes on *other* people's  
patents.

Like I said, that clause has no business being there in the first  
place. *AT*ALL.* Period. Full stop. End of subject.

The rest of the license, with all of the ``shall mean'' and ``subject  
to the'' and ``does not grant'' and ``in no event'' and ``you may  
choose to'' BS, does nothing but erode the freedoms you seem to think  
you're protecting. If you wish Apache to be free, here's a template for  
your next license:

http://www.openbsd.org/cgi-bin/cvsweb/src/share/misc/license.template? 
rev=1.2&content-type=text/x-cvsweb-markup

When you realize that every word you add takes away freedom, you might  
finally Get It.

Two examples:

> 6. Trademarks. This License does not grant permission to use the trade  
>  names, trademarks, service marks, or product names of the Licensor,   
> except as required for reasonable and customary use in describing the   
> origin of the Work and reproducing the content of the NOTICE file.

With this clause, the only rights one has to use Apache trademarks is  
that granted by the license. Those rights happen to be pretty similar  
to those currently granted by trademark law, but not quite. Presumably,  
one only has the least aggregate rights between the two. If the law  
changes and becomes more permissive, Apache users do not benefit from  
the additional freedom made available by the new law. Leave the clause  
out, and you have substantially the same protection from trademark  
dilution as you do with it left in. The clause gains you nothing, but  
it takes away from your users.

In short, all the clause is is a poorly-worded, untested summary of  
existing law that serves as nothing more than shark food. I mean,  
``lawyer bait.''

> provided that the above copyright notice and this permission notice  
> appear in all copies.

This is from the BSD license. Take away these words, and--guess  
what?--the license becomes even more free.

(Theo doesn't want people to have the freedom to remove the copyright  
and permission notices. Your license says that you don't want people to  
have the freedom to exercise their patents or to utter the word,  
``Apache,'' without first getting permission. Guess who I trust more  
with my freedoms.)

See how it works? More words means less freedom.

Cheers,

b&

[demime 1.01d removed an attachment of type application/pgp-signature which had a name of PGP.sig]