apache license 2.0 for consideration

[Mark Shewmaker]

On Sun, 2004-02-08 at 14:19, Rodent of Unusual Size wrote: 
> it is our belief that this new licence is just as osi-compliant
> as the 1.1 version, and is more clearly compatible with the gpl
> to boot.

Is the patent grant section GPL compatible?

>From the Apache License, Version 2.0:

| If You institute patent litigation against any entity (including a 
| cross-claim or counterclaim in a lawsuit) alleging that the Work or a 
| Contribution incorporated within the Work constitutes direct or 
| contributory patent infringement, then any patent licenses granted to 
| You under this License for that Work shall terminate as of the date 
| such litigation is filed.

>From the GPLv2:

| For example, if a patent license would not permit royalty-free
| redistribution of the Program by all those who receive copies directly
| or indirectly through you, then the only way you could satisfy both it
| and this License would be to refrain entirely from distribution of the
| Program.

To me it looks like the patent grant is an additional restriction
beyond the bare GPL when a program licensed under the Apache License
Version 2.0 is then distributed under the GPL.

Imagine this situation:

Three programs are created as follows:
--------------------------------------

  Person A creates Program_A, and licenses it under the Apache
  License, Version 2.0.

  Person_B then takes that work, makes some changes/editions/edits,
  and comes up with the derived work Program_B, which he distributes
  under GPLv2.

  Person_C then makes further changes to Program_B, and distributes
  those changes as Program_C under the GPLv2.

As a side issue:
----------------

  Person_Z creates Program_Z, not derived from anything, and
  distributes it under the GPLv2.

  Person_C uses and further distributes Program_Z.

All these programs also incorporate patents:
--------------------------------------------

  Person_A owns Patent_A.  Patent_A is incorporated into Program_[ABC]
  Person_B owns Patent_B.  Patent_B is incorporated into Program_[BC]
  Person_C owns Patent_C1.  Patent_C1 is incorporated into Program_[ABC]
  Person_C owns Patent_C2.  Patent_C2 is incorporated into Program_Z.

For the GPL-only case:
----------------------

Now assume that Person_C only wants his patents
made/used/sold/distributed in GPL'd code.  Then he won't sue Person_Z
for infringing Patent_C2 in Program_Z, as it's distributed only under
the GPL, (and by redistributing it that way himself, he's given them a
license to distribute Patent_C2 in GPL'd code anyway.)

That's normal GPL stuff.

For the Apache v2 -> GPLv2 case:
--------------------------------

Were Person_B to receive Program_B, distributed *only* under the GPL,
he would presumably have the right to use any incorporated patents,
including Patent_A and Patent_B, as well, within any GPL'd code and
without further restrictions than what the GPL says.

However, Program_B has further strings attached..

If Person_C notices that Person_A is using his Patent_C1 in a non-GPL'd
manner, and initiates a patent infringement lawsuit against
Person_A, according to the Patent License of the Apache License
Version 2.0, his patent license for Patent_A is revoked.

So now Person_C is in the position of having Program_C that
seemed to have been properly distributed to him under the GPL,
but which he can no longer use because his rights to Patent_A have
been revoked.

Person_B is also stuck--he can't distribute Program_B under the
GPL anymore to anyone, because he's not allowed to distribute
it to Person_C due to a lack of a patent license for Patent_A.

In fact, looking at this from before Person_C starts a lawsuit,
you can think of things from the point of view that in order
for Person_[BC] to (continue to) have GPL-rights to Program_[ABC],
Person_C is required to refrain from suing Person_A for patent
infringement.

So would the requirement-not-to-sue be an additional requirement
that would be counter to the GPL in the first place?

-- 
Mark Shewmaker
mark at primefactor.com

--
license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3