STWL 1.0, revision 5

Bernhard Fastenrath bfastenrath at
Wed Nov 17 05:45:08 UTC 2004

Robert E. Jones, III wrote:
>> This license may be invalid for private users of the software but most 
>> patent owners are companies and as a license for a business entity 
>> this is completly in order. I'm quite sure it's the same in the US.
> While I understand what you are trying to achieve, the fact that the 
> licensee would be a corporation would be completely irrelevant in US 
> courts.   About the only issue that would save this clause is if the 
> license was  fully negotiated at arms length by two sophisticated 
> parties and the clause could be considered to be part of the 
> consideration for the license itself.  In case of a pure license like 
> this, where there is arguably little or no negotiation, US courts would  
> view this as an overreaching clause and I have little doubt that they 
> would ever enforce it.    US courts tend to be willing to cut out even 
> related clauses from a non-negotiated license (such as arbitration 
> clauses, or venue clause) so I can see them being very reluctant to 
> enforce a clause that requires a party to give up rights they may 
> otherwise have outside of the scope of the license.  So,  for as much as 
> I am sure that you want it to be otherwise, I am fairly confident this 
> would never hold up in a US court.

Thank you, how's this:

	5. In case the licensee takes legal action alleging infringement of 
software patents the licensee holds and concerning open source software 
as defined by the Open Source Initiative (OSI) this license is suspended 
for the duration of the validitiy of said patents.

	6. In case the previous clause is held to be unenforceable by local 
jurisdiction the author of this software retains the right to suspend 
this license at any time without further explanation under the 
conditions of the previous paragraph.

	7. If any part of this license might be against the local or otherwise 
relevant law or become ineffective in any other way, the rest of the 
license does not loose it’s effect.

> As a further thought though, I guess I wonder also why anyone who owned 
> a software patent would ever even agree to this.  Again, with all due 
> respect to the purpose you wish to achieve, it seems to me that the 
> clause is so punitive, that it would never be worth anyone's while to 
> ever agree to the license.  Assuming that people and corporations are 
> economically rational (without any value judgement attached to whether 
> that is true or even a good thing or a bad thing), I have a hard time 
> believing that any piece of software that would be licensed under this 
> license would be worth the cost of  related to giving up their patent 
> rights by using it.  It would probably be easier to find another piece 
> of software or to write it themselves.  In the end, if the license is as 
> punitive as this seems to be, no one is going to ever use it.

Yes, the clause could only form a protective environment based on 
hesitation to enforce software patents against open source if a large 
number of projects were to adopt similar clauses and, of course, the 
clause were enforceable at all.

> Again, I respect what you are trying to achieve, I am just not sure this 
> particular provision would do much towards achieving that goal from a 
> practical point of view.

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