APSL 1.1 available for comment.

Ken Arromdee arromdee at inetnow.net
Tue Apr 20 15:12:21 UTC 1999

On Mon, 19 Apr 1999, Brian Behlendorf wrote:
> > > Note that the last sentence of section 9.1 explicitly allows you to
> > > address the patent issue in that code yourself.  So even if they "play
> > > dead", if the code is important to you, you can fight for the patent
> > > yourself, and if you win, continue to use the code.  At least that's my
> > > reading.
> > But that is ever so blurry. Apple owns the copyright to the code
> > which has been suspended. The other party owns the patent. It
> > doesn't seem clear to me which "rights" you would be securing from
> > the other party.
> You secure the patent rights.  Then, Apple's code withdrawal no longer
> applies to you, because "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".  That "nothing in
> this License shall be construed" is the key.

What does "applicable law" mean?  Copyright law is law, after all.  If I were
a determined attorney (IANAL), I could argue that Apple's code withdrawal
always applies, since it means you cannot use Apple's code due to copyright
law and it falls under the applicable law part of "nothing shall be construed,
subject to applicable law".

It's also far from clear that "independently negotiating for necessary rights"
includes the null negotiation (for people who live in countries that don't
allow software patents).

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