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

[VanL]

Hi Lukas,

Thanks for your comments.In general, the patent termination provision was
crafted to deal with the actual types of patent attacks I most usually see
around open source - a company, frequently an NPE, will assert a patent
against a large number of users of a common open source application. I
wanted to discourage any patent attacks on CAL-licensed software against
anyone.

Looking at the Apache license, for example, the primary entities protected
are the *contributors.* The CAL protects both the contributors *and* the
Recipients. So if a patent aggressor initiates litigation against a
downstream user, a patent-holding contributor can act on behalf of the user
(because the license is terminated as to the patent aggressor).

On Wed, Aug 14, 2019 at 4:38 AM Lukas Atkinson <opensource at lukasatkinson.de>
wrote:

> 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.
>
> I don't think this ends up being a difference. Patents only matter if
someone is making/using/selling the software. As a result, anyone with
patent exposure would be a Recipient under the CAL.

In your example of a mixed work, you would have to posit that the
patent-infringing material is only in the other-licensed part, not in the
CAL-licensed part - in which case,  the CAL would not apply.


>
>    - 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.
>
>
Yes, this is by design. We hear about companies that need to play the
patent game "for defensive purposes only" - but the Apache-style
termination makes that dangerous to do. This allows companies to act in
their self-defense without incurring collateral damage. It also creates a
self-defense mechanism that other licenses don't allow.


>
>    - CAL terminates all licensed rights (incl. copyright licenses),
>    Apache only the patent licenses. Here, the CAL has stronger protections
>    against aggressors.
>
>
Not every contributor is a patent holder, but every contributor is a
copyright holder. Thus, a wider class of entities would be empowered to act
against a patent aggressor, even if they were not directly threatened.


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

There is no inherent incompatibility that would prevent the licensing of a
larger work under the CAL, nor the use of an Apache-licensed subcomponent
of a CAL-licensed work.

It is true that if someone wanted to assert a patent counterclaim in a case
where there was Apache-licensed software in the mix, it would require some
analysis. But I analyzed these interactions pretty carefully. It is
possible that some actions (e.g., a counterclaim) would preserve a CAL
license but not an Apache license, but only in the case where the "Work"
was effectively dual licensed - it was covered under the Apache termination
provision and the CAL provision. In that case, the more restrictive license
would govern.

More specifically:
CAL subcomponent of an Apache-licensed Larger Work:
  - CAL subcomponent is claimed: The CAL governs. The Apache termination
provision can be avoided through careful drafting of a counterclaim.
  - Apache-licensed portion infringes, or the Larger Work as a whole
infringes: Apache governs. CAL-licensed portion by itself is insufficient
to assert, and so CAL doesn't apply anyway.

Dual Licensing: Both licenses apply. Actual effect on someone asserting a
counterclaim would depend on the contribution clauses in a CLA. Asserting a
counterclaim could cause the termination of patent licenses for
Apache-licensed-only contributors, but a dual-licensing (Apache/CAL) CLA
would preserve patent rights under the CAL side.

Apache subcomponent of a CAL-licensed work:
  - Apache subcomponent is claimed: Apache governs.
  - CAL program (as a whole, or only CAL-licensed portions) are claimed:
The CAL governs.

Thanks,
Van

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