[License-discuss] For Discussion: Cryptographic Autonomy License (CAL) Beta 2

[Lukas Atkinson]

Leaving aside the debate about user data, I think the CAL is an extremely
well crafted license. But I do have some questions about the patent
termination clause. The same paragraph was present in the first beta, but I
just noticed it now.

The CAL says (emphasis mine):

If You initiate litigation *against Licensor, or any Recipient of the Work*,
> either direct or indirect, asserting that the Work directly or indirectly
> infringes any patent, *then all permissions* granted to You by this
> License *shall terminate*. In the event of termination due to litigation,
> all permissions validly granted by You under this License, directly or
> indirectly, shall survive termination. Administrative review procedures,
> declaratory judgment actions, and *counterclaims* in response to patent
> litigation *do not cause termination *due to litigation.
>

This differs in important points from the similar clause in Apache 2
(emphasis mine):

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.


For reference, the corresponding part in GPLv3:


> […] you may not initiate litigation (including a cross-claim or
> counterclaim in a lawsuit) alleging that any patent claim is infringed by
> making, using, selling, offering for sale, or importing the Program or any
> portion of it.
>

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.

   - 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.

   - CAL terminates all licensed rights (incl. copyright licenses), Apache
   only the patent licenses. Here, the CAL has stronger protections against
   aggressors.

Given these differences, it seems that Apache 2 might not be a Compatible
Open Source license for the CAL.

   - What is your take on these differences?
   - What is the rationale for allowing counterclaims that assert that the
   CAL-covered software is infringing?
   - Is this incompatibility intended? Without access to the Apache 2
   ecosystem, it would be much more difficult to create CAL-covered software.
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