<div dir="ltr">Just a simple question: why is ESA forging its own licence, adding to licence proliferation, and not considering the use of the EUPL, at least regarding the copyleft versions?<div>Is it because the EUPL has no strong v/s weak copyleft versions?</div><div>Best regards,</div><div>Patrice</div></div><div class="gmail_extra"><br><div class="gmail_quote">2017-01-20 15:26 GMT+01:00 Carsten Gerlach <span dir="ltr"><<a href="mailto:cgerlach@tcilaw.de" target="_blank">cgerlach@tcilaw.de</a>></span>:<br><blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex"><span class="">On 11.01.2017 13:50, jonathon wrote:<br>
<br>
> The key issue here is «that exercising rights granted by this License<br>
> infringes third party's intellectual property rights».<br>
><br>
> Astrolabe, Inc v Olson et al<br>
> Case # 1:2011cv11725<br>
> Filed 30 September 2011<br>
> Massachusetts District Court, Boston.<br>
><br>
> Until that lawsuit was filed, nobody dreamed that the _Time Zone and<br>
> Daylight Saving Time Database_ could be a copyright violation.<br>
> (For those people who don't recognize the database name, it was the<br>
> official reference for time zones for the Internet in general, and Unix<br>
> in specific.) (That court case was voluntarily dismissed by the<br>
> plaintiff. The specific reason why was not publicly disclosed.)<br>
><br>
> What makes that lawsuit even more surprising, is that copyright law in<br>
> the United States neither recognizes "sweat of the brow" work product as<br>
> being copyrightable, nor databases as being, in and of themselves,<br>
> copyrightable.<br>
><br>
> Call that an edge case. Call it a submarine case. Regardless, what would<br>
> a firm who uses software with the ESA-PL supposed to do, if a key data<br>
> source for it, was the subject of a similar lawsuit?<br>
<br>
</span>If you positively know, or have sufficient reason to believe, that you<br>
infringe third party rights by using a software, you will usually stop<br>
such use. I think that is general prudent behavior, regardless of<br>
specific license terms.<br>
<br>
However, I assume your issue is that in your example it is not the<br>
software that is infringing, but the data processed with the software<br>
(the lawsuit was basically filed for unauthorized reproduction of the<br>
timezone database). Sec. 7 is not meant to apply to such cases - to data<br>
is processed by the software - and I think it cannot be reasonably<br>
construed to apply to such cases. In your example the infringement is<br>
not caused by an exercise of rights granted by the license (e.g. by<br>
running or copying the software), but by an exercise of rights in<br>
respect of the data the software is processing.<br>
<span class=""><br>
> Increasingly, with patents, the only way to know if usage is infringing,<br>
> is for a court to rule on the matter. Paying the dangeld is always a<br>
> losing proposition, but fighting requires more resources than the<br>
> typical organization can afford to throw away.<br>
<br>
</span>In such cases it might be sensible to stop the allegedly infringing use.<br>
However, Sec. 7 does not mandate it unless the infringement is<br>
positively known (e.g. has been confirmed by a court or the patent<br>
holder has provided you with sufficient evidence etc.).<br>
<div><div class="h5"><br>
>> For the European space community it is crucial that any licensee is<br>
> obliged to inform the community of any third party claims he knows of.<br>
><br>
> The ESA-PL does not mandate that known, potential third party claims be<br>
> included.<br>
><br>
> I'll grant that "known" is both vague, and a very slippery slope,<br>
><br>
>> Since the disclosure obligation only applies to patents related to the software itself,<br>
><br>
> But does it?<br>
><br>
> «4.5 Each Contributor must identify all of its Patent Claims by<br>
> providing at a minimum the patent number and identification and contact<br>
> information in a text file included with the Distribution titled "LEGAL".»<br>
><br>
> Much as I'd like to think that that clause meant _only_ the patents that<br>
> impact the specific software, an outfit like Prenda Law will claim that<br>
> it means the entire patent portfolio of the firm. Alternatively, since<br>
> they are willing to bet the Dangeld, they will claim that it means the<br>
> entire patent portfolio of the firm, plus the entire patent portfolio of<br>
> every employee of the firm, plus the entire patent portfolio of every<br>
> consultant to the firm, regardless of their contributions to the<br>
> software in question.<br>
> Clause<br>
>> it is not clear why the obligation is exceptionally unreasonable.<br>
><br>
> It does not explicitly confine the scope of the patent list to patents<br>
> that apply to the specific software that the license applies to.<br>
><br>
>> The aim is to ensure maximum transparency regarding potential patent<br>
> conflicts:<br>
><br>
> Personally, I'd recommend that clause be modified/changed to:<br>
><br>
> «4.5.1 Each Contributor must identify all _patents within its patent<br>
> portfolio, that are utilized in this software,_ by providing, at a<br>
> minimum the patent number and identification and contact information in<br>
> a text file included with the Distribution titled "LEGAL".<br>
><br>
> 4.5.2 Patents that a contributor is aware of, that might be utilized<br>
> within this software, must be listed, by providing, at a<br>
> minimum the patent holder, the patent number, and identification and<br>
> contact information for the patent holder, in a text file included with<br>
> the Distribution titled "LEGAL".»<br>
><br>
> ##3<br>
><br>
> I'll grant that there are a couple of issues with 4.5.2. The biggest<br>
> being "what constitutes _is aware of_".<br>
<br>
</div></div>"Patent Claims" are defined in Sec. 1 as "patent claim(s), owned [...]<br>
by a Contributor which would be infringed by making use of the rights<br>
granted under Sec. 2.1 [...]".<br>
<br>
I think that already clarifies the scope of Sec. 4.5, to the effect of<br>
your proposed revision.<br>
<span class=""><br>
>> if the original authors or contributors own patents that could prevent<br>
> use of the software, such patents need to be disclosed.<br>
><br>
> Clause 4.5 does not mandate disclosure of the existence of<br>
> patents issues to third parties, that might affect the software, when<br>
> the developers are aware of such patents.<br>
<br>
</span>That's correct, but we felt that such a broad obligation would be too<br>
onerous.<br>
<span class="HOEnZb"><font color="#888888"><br>
Carsten<br>
</font></span><div class="HOEnZb"><div class="h5">______________________________<wbr>_________________<br>
License-review mailing list<br>
<a href="mailto:License-review@opensource.org">License-review@opensource.org</a><br>
<a href="https://lists.opensource.org/cgi-bin/mailman/listinfo/license-review" rel="noreferrer" target="_blank">https://lists.opensource.org/<wbr>cgi-bin/mailman/listinfo/<wbr>license-review</a><br>
</div></div></blockquote></div><br><br clear="all"><div><br></div>-- <br><div class="gmail_signature" data-smartmail="gmail_signature">Patrice-Emmanuel Schmitz<br><a href="mailto:pe.schmitz@googlemail.com" target="_blank">pe.schmitz@googlemail.com</a><br>tel. + 32 478 50 40 65</div>
</div>