[License-review] Submission of the European Space Agency Public Licenses (ESA-PL) for approval

Carsten Gerlach cgerlach at tcilaw.de
Tue Jan 10 15:44:00 UTC 2017

On 21.12.2016 19:06, Smith, McCoy wrote:
> Without commenting on the merits of the other provisions of this
> license, I'm curious about the requirements of paragraph 4.5 and 7.
> Are those mandated by law in the EU or by the IPR rules of the ESA?
> They seem to be a fairly powerful disincentive to use these licenses
> for most entities that would not be forced to use it (i.e., anyone
> other than the ESA).  I'm also curious as to how one measures the
> "knowledge" requirement that forces one to give notice and stop
> distribution.

The requirements of Sec. 4.5 and Sec. 7 are not mandated by EU law.

Sec. 4.5 applies to patents related to the software itself (see the
definition of "Patent Claims" in Sec. 1.9). The aim is to ensure maximum
transparency regarding potential patent conflicts: if the original
authors or contributors own patents that could prevent use of the
software, such patents need to be disclosed. We do not think that it is
an unreasonable burden for potential contributors to disclose patents
which are relevant to the software.

Sec. 7(a) is due to ESA's aim as a public agency to avoid infringements
of third party IPR infringements and to avoid being associated with
infringements. ESA needs to be notified about infringements as soon as
possible that relate to ESA-PL licensed software (since the ESA-PL is
most likely being used by ESA for ESA-initiated OSS projects, the ESA-PL
license will most likely apply only to software that is somehow
associated with ESA).

Sec. 7(b) should be uncontroversial, since it merely describes
reasonable behavior: if a user knows that the software infringes third
party rights, the user should cease the infringing uses to avoid
becoming liable himself - which is actually also to be seen as legal

In both cases, "knowledge" should mean positive knowledge of an
infringement, for example if the user is subject to infringement claims
himself, has positive knowledge of infringement claims against a third
party or if the user’s own intellectual property rights are being infringed.


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