Hi Lukas, Thanks for your comments.In general, the patent termination provision was crafted to deal with the actual types of patent attacks I most usually see around open source - a company, frequently an NPE, will assert a patent against a large number of users of a common open source application. I wanted to discourage any patent attacks on CAL-licensed software against anyone.
Looking at the Apache license, for example, the primary entities protected are the *contributors.* The CAL protects both the contributors *and* the Recipients. So if a patent aggressor initiates litigation against a downstream user, a patent-holding contributor can act on behalf of the user (because the license is terminated as to the patent aggressor). On Wed, Aug 14, 2019 at 4:38 AM Lukas Atkinson <opensou...@lukasatkinson.de> wrote: > Summary of differences between CAL and Apache 2: > > - Apache discourages patent litigation against any entity, CAL only > against parties to the license. These groups are not necessarily identical > if the patent is incorporated in a differently-licensed contribution that's > used by multiple programs, and the patent litigation addresses an unrelated > program using the same contribution. > > I don't think this ends up being a difference. Patents only matter if someone is making/using/selling the software. As a result, anyone with patent exposure would be a Recipient under the CAL. In your example of a mixed work, you would have to posit that the patent-infringing material is only in the other-licensed part, not in the CAL-licensed part - in which case, the CAL would not apply. > > - CAL's termination only triggers when patent litigation is *initiated*, > Apache also discourages counterclaims that assert that the Work is > infringing. Here, the CAL has weaker protections. > > Yes, this is by design. We hear about companies that need to play the patent game "for defensive purposes only" - but the Apache-style termination makes that dangerous to do. This allows companies to act in their self-defense without incurring collateral damage. It also creates a self-defense mechanism that other licenses don't allow. > > - CAL terminates all licensed rights (incl. copyright licenses), > Apache only the patent licenses. Here, the CAL has stronger protections > against aggressors. > > Not every contributor is a patent holder, but every contributor is a copyright holder. Thus, a wider class of entities would be empowered to act against a patent aggressor, even if they were not directly threatened. > Given these differences, it seems that Apache 2 might not be a Compatible > Open Source license for the CAL. > There is no inherent incompatibility that would prevent the licensing of a larger work under the CAL, nor the use of an Apache-licensed subcomponent of a CAL-licensed work. It is true that if someone wanted to assert a patent counterclaim in a case where there was Apache-licensed software in the mix, it would require some analysis. But I analyzed these interactions pretty carefully. It is possible that some actions (e.g., a counterclaim) would preserve a CAL license but not an Apache license, but only in the case where the "Work" was effectively dual licensed - it was covered under the Apache termination provision and the CAL provision. In that case, the more restrictive license would govern. More specifically: CAL subcomponent of an Apache-licensed Larger Work: - CAL subcomponent is claimed: The CAL governs. The Apache termination provision can be avoided through careful drafting of a counterclaim. - Apache-licensed portion infringes, or the Larger Work as a whole infringes: Apache governs. CAL-licensed portion by itself is insufficient to assert, and so CAL doesn't apply anyway. Dual Licensing: Both licenses apply. Actual effect on someone asserting a counterclaim would depend on the contribution clauses in a CLA. Asserting a counterclaim could cause the termination of patent licenses for Apache-licensed-only contributors, but a dual-licensing (Apache/CAL) CLA would preserve patent rights under the CAL side. Apache subcomponent of a CAL-licensed work: - Apache subcomponent is claimed: Apache governs. - CAL program (as a whole, or only CAL-licensed portions) are claimed: The CAL governs. Thanks, Van _______________________________________________ > License-discuss mailing list > License-discuss@lists.opensource.org > > http://lists.opensource.org/mailman/listinfo/license-discuss_lists.opensource.org >
_______________________________________________ License-discuss mailing list License-discuss@lists.opensource.org http://lists.opensource.org/mailman/listinfo/license-discuss_lists.opensource.org
