Compatibility of the AFL with the GPL

[Lawrence E. Rosen]

Richard,

Today you finally gave public reasons for your assertion that the AFL is
incompatible with the GPL.  Because you are simply wrong on the law and
wrong-headed on a matter of principle, I must file this public response.

You wrote (at http://www.gnu.org/philosophy/license-list.html) that:

   The AFL is incompatible with the GPL for two reasons.
   One is that its rules about trademark use appear to go
   beyond what trademark law itself actually requires in
   some countries, prohibiting what would legally be fair
   use of the trademark.

The trademark clause in the AFL merely states that "Neither the names of
Licensor, nor the names of any contributors to the Original Work, nor
any of their trademarks or service marks, may be used to endorse or
promote products derived from this Original Work without express prior
written permission of the Licensor."

Why can't a licensor prohibit the use of his trademarks or his good name
even while he provides a TOTALLY FREE copyright license to his software?
[You wrote, the AFL "is a free software license."]   This provision is
not only perfectly compatible with the GPL and the spirit of free
software, but it is within the trademark and right of publicity laws of
every country I'm aware of.  What countries and what laws are you
thinking of?

You also wrote:

   Another incompatibility comes from its "Mutual termination
   for Patent Action" clause. Putting aside the difficult 
   question of whether this sort of clause is a good idea or a
   bad one, it is incompatible with the GPL.

This Mutual Defense provision -- as we prefer to call it amongst
ourselves and our friends -- is indeed a controversial one.  It reads: 
   
   "Mutual Termination for Patent Action.
   This License shall terminate automatically and You may no
   longer exercise any of the rights granted to You by this License
   if You file a lawsuit in any court alleging that any OSI 
   Certified open source software that is licensed under any
   license containing this 'Mutual Termination for Patent 
   Action' clause infringes any patent claims that are essential
   to use that software."

I'll leave for another thread any discussion about whether this is a
good idea or a bad idea.  But how is it incompatible with the GPL?  The
provision only applies to software licensed under the AFL and similar
licenses, and it doesn't affect in any way software that is not licensed
with this provision.  

***Anyone*** is free to take software licensed under the AFL and
re-license it under any license, including licenses not containing the
Mutual Defense provision ["to use, copy, modify, merge, publish,
perform, distribute and/or sell copies of the Original Work and
derivative works thereof,..."].  In fact, the AFL permits anyone to
freely relicense their derivative work software under the GPL.

So what's your problem?

/Larry Rosen

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