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From Dalibor Topic <>
Subject Re: Harmony Podlling Quarterly Report
Date Fri, 29 Jul 2005 22:33:16 GMT
Roy T. Fielding <fielding <at>> writes:

> On Jul 28, 2005, at 9:41 PM, Dalibor Topic wrote:

Hi Roy,

thank you very much for your polite, fast and detailed reply.

Let's substitute the MIT license for the GPL/LGPL/whatever, since it is 
less restrictive and considered to be acceptable for the ASF as well 
as being compatible with GPL and LGPL (and any other license afaik).
Let's also use Derby as an example, since it's a nice project, too.

Can I redistribute Apache Derby, unmodified, under the MIT 
license? I'm wondering since I've heard both yes and no answers from
various people, so I guess I'd ask someone who knows.

Looking at the ASL2, it seems that I can chose
my terms for Derivative Works as a whole freely, as long as the terms I
chose are not contrary to the ASL2. Is the MIT license acceptable as
a license for a Derivative Works as a whole? 

If it is, let's say that I create a Derivative Work of Apache Derby
by prepending each and every file in the tarball that I downloaded from with the text 

"This Software has been modified, and therefore as a whole is licensed 
under the terms of the MIT license, which follows:

To satisfy requirements for creation of a Derivative Work in the Apache
Software License 2.0 of the original Work available from,
and in order to be able to chose my own licensing terms, here is a 
highly creative haiku on software licensing I wrote specifically 
for this ocassion:

Ugh Ugh Ugh Ugh Argh.
Ugh Ugh Ugh Ugh Ugh Ugh Argh,
D'oh D'oh D'oh D'oh Argh!"

> > Are the provisions of the section 4 supposed to be transitive,
> > i.e. to apply to
> > all steps in the distribution chain, or not? Afaict, the requirement
> >  to carry
> > around the Apache License is lost after I pass my sublicensed
> >  GPL2/ASL2 version
> > on to others, as they can chose to accept the GPL and not
> > carry the additional
> > ASL around when they redistribute further.
> No, it isn't lost -- the GPL requires that those notices remain
> intact as well and it doesn't matter how many times they change
> hands -- the Apache license remains the way in which the copyright
> owner gave everyone else the right to reproduce the software.
> The fact that you added a more restrictive set of terms (GPL)
> does not change the original terms.

What if I add a set of more liberal terms than the original ones (MIT)?

> No, you don't understand. Neither the ASL nor the GPL creates
> a patent license.  Apache has a contributors agreement in which
> all significant contributors agree to provide a patent license
> to all recipients of Apache software (including those who received
> it via a GPL redistribution) which *may* be terminated if the
> recipient sues the contributor for patent infringement claiming
> that the work to which they contributed the license infringes
> one of that recipient's patents. 

The text I have says 

"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."

To me, that sounds as if the patent license termination is automatic
as soon as the law suit is filed, rather than something that may or 
may not happen at the patent owner's discretion. Correct?

> In contrast, if you receive software via the GPL or MIX/X or
> BSD licenses, there is no patent license at all and your rights
> are equivalent to those where the license was terminated.

Is that any different from someone who has received a Derivative Work 
based on software covered by the ASL2? Afaict, the patent license grant
does not mention granting any rights to Derivative Works. I suppose
I am wrong, but I can't see it in the license yet.

> > Would it be possible to fix the small bug in the ASL2 this way?
> No, it is not a bug.  It is an intentional feature to help those
> of us who do not litigate our license to keep our developers
> out of the court system and protect our foundation from submarine
> submission of patented material. 

I am sorry about calling it a bug, and I appreciate the interesting
device used to encourage recepients of ASF's software to avoid dragging
memebers to court. Still, it is a feature I do not need, as I have no
patents, and no intentions to sue the ASF, so I would like to turn
that feature into a noop for those I distribute my haiku enhanced 
Derivative Works under the MIT to.

Lawrence Rosen goes into this particular scenario in some detail wrt to
sublicensing and the effects on the patent clauses in the AFL in his book
on Open Source Licensing, available at in chapter 10, pages 247-249.

Rosen says 

"Does section 10 of the 
AFL extend through sublicensing to protect the author of A
even against patent infringement lawsuits by downstream sub-
licensees like X? [..]
Do such terms bind—via sublicensing—the recipients
of derivative works of AFL-licensed contributions?
   I find it hard to believe that any court would bind any
downstream sublicensee of an open source contribution to any
terms and conditions of a license of which he was not
informed and didn’t manifestly accept. That is certainly a basic
tenet of contract law and a fair result in the context of mass-
marketed open source software offered for free over the Inter-
net. So to the extent that an AFL-licensed component was
sublicensed by D as part of a derivative work, customer X at
the end of the chain cannot be bound to the AFL but only to
the license with D that he or she accepted.
[..]License terms do not pass
through via sublicensing unless A insists upon it in the soft-
ware license, and the AFL does no such thing."

He offers a discussion of pretty much the same scenario I am trying to
figure out wrt to the ASL2 in the context of the similar patent grants
in the AFL. Would the scenario discussed by Rosen for the AFL be any
different for the ASL2?

dalibor topic

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