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Posted to legal-discuss@apache.org by Lawrence Rosen <lr...@rosenlaw.com> on 2015/06/01 00:20:02 UTC
RE: Proposal: Disclosure of patents by Apache projects
[Responses to three board members in one email. :-) ]
Greg Stein wrote:
> Thus, to water out random claims of infringement from random developers, we must wait until the patent holder *informs* us that we (likely) infringe. Until the patent holder wants to assert that, then I don't think we're qualified to make *any* judgement, including whether it is important/relevant to provide notice.
Nobody is concerned about "random claims of infringement from random developers." Or rather, "if you are concerned about such a claim, then say so in the NOTICE file. If not, move it to the trash." Nothing more is required from ASF or its members and contributors. I would ask only for open disclosure within Apache projects of patents that seem interesting to the project PMC itself.
There is no risk to ASF from such disclosure. Under ALv2, disclosures of potentially relevant patents come with no warranties from ASF.
ASF offers *NO* judgements of importance or relevance about patents. None of us is qualified for that.
Rich Bowen wrote:
> Forgive my ignorance, but, surely, if we are aware that we infringe, wouldn't we be compelled to rectify that situation before making another release?
If an Apache member or contributor becomes "aware that we infringe," that ought to be disclosed. Such a professional judgment by a participant in an Apache project is an important opinion. Disclosing that more widely may help downstream users from incurring strict liability patent infringement damages that don't depend at all on their "awareness."
This is different from "aware that there is a patent," which is merely information that might be of interest. Such vague awareness comes to me every time I browse through "stupid" patents on the Patently-O website. I have no obligation to disclose them here, but sometimes I do when they seem relevant.
As for "rectifying an infringement," that depends entirely on the facts. If an Apache project becomes "aware that we infringe," that PMC ought to obtain some professional advice from its team members and other professionals in our customer's companies. Doing otherwise is a financial risk to our customers.
Sam Ruby wrote:
> Our policy indeed is that "We never knowingly incorporate patented technology in our own products unless such technology has been offered free for everyone."
I know that we're not stupid here. All I'm suggesting is that we document our intelligence in our NOTICE file so that our customers can verify it for themselves if they want to.
/Larry
Lawrence Rosen
"If this were legal advice it would have been accompanied by a bill."
From: Greg Stein [mailto:gstein@gmail.com]
Sent: Sunday, May 31, 2015 1:53 PM
To: legal-discuss@apache.org; Lawrence Rosen
Subject: Re: Proposal: Disclosure of patents by Apache projects
<snip>
RE: Proposal: Disclosure of patents by Apache projects
Posted by Lawrence Rosen <lr...@rosenlaw.com>.
Sam Ruby wrote:
> We should only do that after discussions with counsel, based on the specifics
> of the claim and the ASF project in question.
Will Apache's counsel responsible for all such detailed PMC's patent questions please identify himself/herself.
/Larry
-----Original Message-----
From: Sam Ruby [mailto:rubys@intertwingly.net]
Sent: Sunday, May 31, 2015 3:33 PM
To: Legal Discuss; Lawrence Rosen
Subject: Re: Proposal: Disclosure of patents by Apache projects
On Sun, May 31, 2015 at 6:20 PM, Lawrence Rosen <lr...@rosenlaw.com> wrote:
>
> Sam Ruby wrote:
>
>> Our policy indeed is that "We never knowingly incorporate patented
>> technology in our own products unless such technology has been
>> offered free for everyone."
>
> I know that we're not stupid here. All I'm suggesting is that we
> document our intelligence in our NOTICE file so that our customers can
> verify it for themselves if they want to.
We should only do that after discussions with counsel, based on the specifics of the claim and the ASF project in question.
- Sam Ruby
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Re: Proposal: Disclosure of patents by Apache projects
Posted by Sam Ruby <ru...@intertwingly.net>.
On Sun, May 31, 2015 at 6:20 PM, Lawrence Rosen <lr...@rosenlaw.com> wrote:
>
> Sam Ruby wrote:
>
>> Our policy indeed is that "We never knowingly incorporate patented
>> technology in our own products unless such technology has been offered free
>> for everyone."
>
> I know that we're not stupid here. All I'm suggesting is that we document
> our intelligence in our NOTICE file so that our customers can verify it for
> themselves if they want to.
We should only do that after discussions with counsel, based on the
specifics of the claim and the ASF project in question.
- Sam Ruby
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Re: Proposal: Disclosure of patents by Apache projects
Posted by Emmanuel Lécharny <el...@gmail.com>.
Le 02/06/15 22:06, Lawrence Rosen a écrit :
> To the rest of us in Apache projects, though, your expert opinions
> about patents are what matters most. So when one of our respected
> members says "this patent is BS, IMHO" then I am likely not to be
> worried tonight. I would much wish that he had said something of more
> technical value, and that he was willing to say it aloud in a NOTICE
> file that bears no ASF warranties.
What for ?? Seriously, I explained why I do think why this patent is
plain BS because of existing prior act, what more do we need ? Why
should I spend hours writing in correct english and legal terminology
(something I'm not capabale of producing) in a NOTICE that some stupid
company decided it was useful to pay some of their employees to fulfill
a piece of document which is a waste of their time and their money ?
Rgeardless of the US laws, which is still in the process of deciding
that patnenting software patents is just as useful as patenting
mathematic formulas, something that many countries in the world have
already stated, it's not ours to warn our users about hypothetical risks
that does not even exist. Simply because *if* someone can patent some
software, then we can shutdown The ASF.
Bottom line: not my problem, not even a problem. Let's move on.
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Re: Proposal: Disclosure of patents by Apache projects
Posted by Stephen Connolly <st...@gmail.com>.
On 2 June 2015 at 21:06, Lawrence Rosen <lr...@rosenlaw.com> wrote:
> Roy Fielding wrote:
>
> > ALv2 covers our software products, not our disclosures.
>
>
>
> ALv2 and its disclaimer of warranties covers our entire copyrighted
> aggregations *including our NOTICE files*. :-)
>
ROFL. Trust a solicitor to focus on a nit!
In that case shouldn't the NOTICE file include the ALv2 header just in case
it gets separated from the license.
IOW should https://github.com/apache/httpd/blob/trunk/NOTICE not start with
something like:
/* Licensed to the Apache Software Foundation (ASF) under one or more
* contributor license agreements. See this NOTICE file distributed with
* this work for additional information regarding copyright ownership.
* The ASF licenses this file to You under the Apache License, Version 2.0
* (the "License"); you may not use this file except in compliance with
* the License. You may obtain a copy of the License at
*
* http://www.apache.org/licenses/LICENSE-2.0
*
* Unless required by applicable law or agreed to in writing, software
* distributed under the License is distributed on an "AS IS" BASIS,
* WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied.
* See the License for the specific language governing permissions and
* limitations under the License.
*/
RE: Proposal: Disclosure of patents by Apache projects
Posted by Lawrence Rosen <lr...@rosenlaw.com>.
YES PLEASE Ralph!
I am a strong supporter of the Peer to Patent <http://www.peertopatent.org/>
activity. One of the companies I've long had an interest in has some patents
that were introduced through that process and validated and issued by the
PTO much more quickly because of that. Apache members should contribute
opinions and prior art at Peer to Patent please.
That has nothing to do with an Apache NOTICE file. Different people will
notice it (pun intended).
/Larry
From: Ralph Goers [mailto:ralph.goers@dslextreme.com]
Sent: Tuesday, June 2, 2015 1:57 PM
To: Legal Discuss; Lawrence Rosen
Subject: Re: Proposal: Disclosure of patents by Apache projects
On Jun 2, 2015, at 1:06 PM, Lawrence Rosen <lrosen@rosenlaw.com
<ma...@rosenlaw.com> > wrote:
To the rest of us in Apache projects, though, your expert opinions about
patents are what matters most. So when one of our respected members says
"this patent is BS, IMHO" then I am likely not to be worried tonight. I
would much wish that he had said something of more technical value, and that
he was willing to say it aloud in a NOTICE file that bears no ASF
warranties. But regardless, his comment by itself will not result in any
willful infringement damages to Apache or anyone else.
If I had something useful to say about a patent a NOTICE file would be the
last place I would want to say it. IMO, it would be much more effective to
say it somewhere it would be more likely to be noticed (pun intended) such
as http://www.peertopatent.org/ orhttp://ip.com/prior-art-database/.
Ralph
Re: Proposal: Disclosure of patents by Apache projects
Posted by Ralph Goers <ra...@dslextreme.com>.
> On Jun 2, 2015, at 1:06 PM, Lawrence Rosen <lr...@rosenlaw.com> wrote:
>
>
> To the rest of us in Apache projects, though, your expert opinions about patents are what matters most. So when one of our respected members says "this patent is BS, IMHO" then I am likely not to be worried tonight. I would much wish that he had said something of more technical value, and that he was willing to say it aloud in a NOTICE file that bears no ASF warranties. But regardless, his comment by itself will not result in any willful infringement damages to Apache or anyone else.
>
If I had something useful to say about a patent a NOTICE file would be the last place I would want to say it. IMO, it would be much more effective to say it somewhere it would be more likely to be noticed (pun intended) such as http://www.peertopatent.org/ <http://www.peertopatent.org/> orhttp://ip.com/prior-art-database/ <orhttp://ip.com/prior-art-database/>.
Ralph
RE: Proposal: Disclosure of patents by Apache projects
Posted by Lawrence Rosen <lr...@rosenlaw.com>.
Roy Fielding wrote:
> ALv2 covers our software products, not our disclosures.
ALv2 and its disclaimer of warranties covers our entire copyrighted
aggregations including our NOTICE files. :-) The rest of what you say is
true: "Any statement we might make is evidentiary for both us and our
downstream recipients." That is why I assume that everything I say on a
public email list is really CC-BY 4.0 and subject to a free subpoena.
> Many of us are qualified when supplied with the complete
> patent history and definition of terms. A few are even
> allowed to do so by their employers (or lack thereof).
Indeed so. VERY qualified, and have earned respect in their companies and
within Apache and in court sometimes also to speak their minds.
But courts don't expect that most of what random technical experts say early
in the day is by itself of much legal value to determine the knowledge
requirement for inducing infringement. As you said, you would need to be
supplied with "the complete patent history and definition of terms." Nobody
contributing at ASF is required to read and determine that stuff no matter
their qualifications to do so.
For example, the recent CAFC case I posted here (Info-Hold v. Muzak
<http://cases.justia.com/federal/appellate-courts/cafc/14-1167/14-1167-2015-
04-24.pdf?ts=1429887716> ) said that even the parties' experts and attorneys
wouldn't have had a meaningful opinion about infringement until the court
determined what the claims meant in saying "when a caller is placed on
hold." (Read that part of the decision; it is fun proof of what many here
believe about the confusing language in patents.) The parties stipulated in
District Court that most of Info-Hold's patent claims couldn't apply at all
based on that definition. I assume that experts like you helped the parties
come to that agreement. Nobody else can!
To the rest of us in Apache projects, though, your expert opinions about
patents are what matters most. So when one of our respected members says
"this patent is BS, IMHO" then I am likely not to be worried tonight. I
would much wish that he had said something of more technical value, and that
he was willing to say it aloud in a NOTICE file that bears no ASF
warranties. But regardless, his comment by itself will not result in any
willful infringement damages to Apache or anyone else.
Note also that the CAFC sent the Info-Hold case back to District Court to
factually determine whether there was "willful blindness":
This record raises issues of material fact as to whether Muzak may have
subjectively believed there was a high probability it infringed the '374
patent and took deliberate actions to avoid learning whether it actually
did. In other words, the record raises the issue of whether Muzak willfully
blinded itself to whether it acted to induce infringement after becoming
aware of the existence and alleged functionality of the '374 patent. See
Global-Tech, 131 S. Ct. at 2070. Therefore, we vacate the district court's
grant of summary judgment of no induced infringement and remand for further
consideration on the issue of Muzak's willful blindness.
In every other respect, Roy, I appreciate hearing your objections to a
revised policy regarding the reasonable disclosure of patents in a NOTICE
file. Many agree with you on that point. I hope not all.
/Larry
From: Roy T. Fielding [mailto:fielding@gbiv.com]
Sent: Tuesday, June 2, 2015 10:43 AM
To: ASF Legal Discuss
Subject: Re: Proposal: Disclosure of patents by Apache projects
On May 31, 2015, at 3:20 PM, Lawrence Rosen <lrosen@rosenlaw.com
<ma...@rosenlaw.com> > wrote:
[Responses to three board members in one email. :-) ]
Greg Stein wrote:
> Thus, to water out random claims of infringement from random developers,
we must wait until the patent holder *informs* us that we (likely) infringe.
Until the patent holder wants to assert that, then I don't think we're
qualified to make *any* judgement, including whether it is
important/relevant to provide notice.
Nobody is concerned about "random claims of infringement from random
developers." Or rather, "if you are concerned about such a claim, then say
so in the NOTICE file. If not, move it to the trash." Nothing more is
required from ASF or its members and contributors. I would ask only for open
disclosure within Apache projects of patents that seem interesting to the
project PMC itself.
There is no risk to ASF from such disclosure. Under ALv2, disclosures of
potentially relevant patents come with no warranties from ASF.
ALv2 covers our software products, not our disclosures. We are just as
liable for our statements as any human being, and any statement we might
make is evidentiary for both us and our downstream recipients.
ASF offers *NO* judgements of importance or relevance about patents. None
of us is qualified for that.
I don't understand why you keep saying that. Many of us are qualified when
supplied with the complete patent history and definition of terms. A few are
even allowed to do so by their employers (or lack thereof).
I know that we're not stupid here. All I'm suggesting is that we document
our intelligence in our NOTICE file so that our customers can verify it for
themselves if they want to.
I suggest that would be stupid and non-productive, since it would only
benefit and encourage trolls. In any case, doing so would never happen in
the NOTICE file, which contains notices that are a binding part of our
copyright license (i.e., NOTICE has nothing to do with patents, known or
not).
....Roy
Re: Proposal: Disclosure of patents by Apache projects
Posted by Jim Jagielski <ji...@jaguNET.com>.
For the sake of discussion, certainly not NOTICE, which has
a very specific function. So README or PATENTS or some other
file makes sense.
> On Jun 2, 2015, at 5:44 PM, William A Rowe Jr <wr...@rowe-clan.net> wrote:
>
> On Tue, Jun 2, 2015 at 12:42 PM, Roy T. Fielding <fi...@gbiv.com> wrote:
>> On May 31, 2015, at 3:20 PM, Lawrence Rosen <lr...@rosenlaw.com> wrote:
>>
>> [Responses to three board members in one email. :-) ]
>>
>> Greg Stein wrote:
>> > Thus, to water out random claims of infringement from random developers, we must wait until the patent holder *informs* us that we (likely) infringe. Until the patent holder wants to assert that, then I don't think we're qualified to make *any* judgement, including whether it is important/relevant to provide notice.
>>
>> Nobody is concerned about "random claims of infringement from random developers." Or rather, "if you are concerned about such a claim, then say so in the NOTICE file. If not, move it to the trash." Nothing more is required from ASF or its members and contributors. I would ask only for open disclosure within Apache projects of patents that seem interesting to the project PMC itself.
>>
>> There is no risk to ASF from such disclosure. Under ALv2, disclosures of potentially relevant patents come with no warranties from ASF.
>
> ALv2 covers our software products, not our disclosures. We are just as liable for our statements as any human being, and any statement we might make is evidentiary for both us and our downstream recipients.
>
> So let me ask what might be a blindingly obvious question. A handful of awarded patents apply to a code base submitted to the ASF, licensed under the AL by the patent holder, patent rights are conveyed.
>
> Do we note the specific patent numbers/titles? If so, where? README? NOTICE? PATENTS?
>
>
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Re: Proposal: Disclosure of patents by Apache projects
Posted by Alex Harui <ah...@adobe.com>.
Do SGAs for code containing patents happen often? I know Flex code had
patents and patents applied for and they are not enumerated in any file
like NOTICE or README. That said, it may be that Adobe abandoned the
patents and applications at the time of contribution. I can ask Adobe
Legal if there isn’t already enough precedence by other SGAs to establish
a pattern.
-Alex
On 6/3/15, 5:59 AM, "Shane Curcuru" <as...@shanecurcuru.org> wrote:
>On 6/3/15 8:44 AM, Geir Magnusson Jr. wrote:
>> But what's the point of any of this? There's no reason to require
>>Sneaky Author to enumerate anything because via contribution via the AL,
>>they have granted a license to anything they have necessarily infringed
>>by the contribution (or combined contribution and existing work)
>>
>> And I as the recipient don't really care - I know that via the patent
>>grant in the AL, Sneaky Author can't come after me for any patents they
>>hold (enumerated or not) that read on the work they contributed to.
>>
>> Is there a real problem we're trying to solve?
>
>I'm not aware of any Apache project asking this question, no. It seems
>Bill might have a case related to this thread, which we can address when
>it comes up.
>
>- Shane
>
>>
>> geir
>>
>>
>>> On Jun 3, 2015, at 8:25 AM, Jim Jagielski <ji...@jagunet.com> wrote:
>>>
>>>
>>>> On Jun 3, 2015, at 6:09 AM, Geir Magnusson Jr. <ge...@pobox.com> wrote:
>>>>
>>>>
>>>> My understanding of the AL is that we don't need to be explicit. If
>>>>the author of the code has patents that matter, they are providing a
>>>>license and they can't sue you.
>>>>
>>>
>>> Certainly the SGA and *CLA also provide additional "confirmation"
>>> of the above; If an author wishes to list the patents, then
>>> fine. We can, if we want, create a file which maintains the history and
>>> heritage of that list, in a file named TO-BE-DETERMINED. However,
>>> that file should have some sort of boilerplate at the top stating
>>> that the ALv2 (and whatever other agreements they have signed)
>>> maintains that the author has explicitly provided a patent license
>>> for any patent held by that author that might be infringed by
>>> said contribution and therefore the list may not be complete.
>>>
>>> For example, say that author has patent X, Y and Z yet is a very
>>> sneaky entity. Said author provides the code and enumerates that
>>> patent X and Y are granted. We do not want said author to then
>>> be able to sue for patent Z. The ALv2 prevents that. And should
>>> the case go to court, discovery will uncover their attempt to
>>> subvert the intent.
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>>>
>>
>>
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>>
>>
>
>
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Re: Proposal: Disclosure of patents by Apache projects
Posted by William A Rowe Jr <wr...@rowe-clan.net>.
On Wed, Jun 3, 2015 at 4:06 PM, David Jencks <david_jencks@yahoo.com.invalid
> wrote:
> I think Marks concerns should be taken quite seriously.
>
+1 - I'm not arguing for a specific outcome or policy, I'm asking what the
correct policy would be, moving forwards...
> On Jun 3, 2015, at 10:42 AM, Mark Thomas <ma...@apache.org> wrote:
> >
> > <full-disclosure>
> > The corp in question is my employer.
> > These are my opinions not my employers.
> > </full-disclosure>
>
And ditto. My line of questions are framed from my perspective as an
ASF Mentor to the project, rather than as an employee of the same corp.
> > I appreciate that the corp in question is trying to do the right thing.
> >
> > I would argue - based on our experience of adding the "I grant this
> > patch under the ALv2" button to Jira - that doing anything over any
> > beyond that which is required by our existing CLA and CCLA process will
> > cause us more problems in the long run than it solves.
> >
> > By granting this code to the ASF under the ALv2 any and all necessary
> > patent licenses are granted. That is the only thing that needs to be
> > said publicly and - in my view - the only thing that should be said
> > publicly. There is no problem here that needs to be solved.
>
I tend to agree that the AL conveys both the copyright licenses and the
patent licenses necessary for the code to persist as OSS. Because the
nature of copyright licenses vary from patent licenses, it seems prudent
to consider if this is sufficient, as we don't waste our energies here
enumerating each of the many copyrights that would cover the individual
bits of an ASF collective work.
However, in forking copyrighted code, a new copyright exists. In forking
patented code, the license may or may not transfer to the fork, depending
on the nature of the fork, it's relationship to the original submission, the
intents and interpretation of the license by the grantor, and ultimately
the interpretation by a court if things go entirely sideways.
> > If the corp wants to provide the PMC (privately) with a list of patents
> > it thinks it has licensed then fine but I don't see how making that list
> > public helps anyone.
> >
> > The potential issues I see with making the list public include:
> > - projects that don't publish a list of licensed patents start being
> > asked by users to produce one
> > - projects that do publish a list start being asked about XYZ patent
> > that a random user things might apply to the project
> > - committers start being asked to explicitly state if each commit is
> > covered by a patent or not
> >
> > If we could guarantee that - for each project - we could produce a
> > complete list of licensed patents then I'd have far fewer concerns. But
> > I do not believe we can do that. Further, I believe that publishing
> > incomplete lists will create the perception of problems where none
> > exists given the clear and unambiguous language that is already present
> > in the ALv2 with respect to patents.
>
All of the concerns above are quite valid.
Actually, for any work that originates in the commercial world, there is
usually quite good documentation of the applicable patents and they are
generally part of the product literature itself. And presuming the patent
holder is the contributor of the code and happens to be a committer
and/or member of the PMC, collecting this information shouldn't be
too challenging.
Where a contributor has parted ways with the ASF, that starts to become
impossible to realistically track down. As you note, we can't promise
our users that we have discovered every claim against the project's
implementation.
Re: Proposal: Disclosure of patents by Apache projects
Posted by David Jencks <da...@yahoo.com.INVALID>.
I think Marks concerns should be taken quite seriously.
thanks
david jencks
On Jun 3, 2015, at 10:42 AM, Mark Thomas <ma...@apache.org> wrote:
> On 03/06/2015 14:38, William A Rowe Jr wrote:
>> On Wed, Jun 3, 2015 at 7:59 AM, Shane Curcuru <asf@shanecurcuru.org
>> <ma...@shanecurcuru.org>> wrote:
>>
>> On 6/3/15 8:44 AM, Geir Magnusson Jr. wrote:
>>> But what's the point of any of this? There's no reason to require Sneaky Author to enumerate anything because via contribution via the AL, they have granted a license to anything they have necessarily infringed by the contribution (or combined contribution and existing work)
>>>
>>> And I as the recipient don't really care - I know that via the patent grant in the AL, Sneaky Author can't come after me for any patents they hold (enumerated or not) that read on the work they contributed to.
>>>
>>> Is there a real problem we're trying to solve?
>>
>> I'm not aware of any Apache project asking this question, no. It seems
>> Bill might have a case related to this thread, which we can address when
>> it comes up.
>>
>>
>> Indeed, there is no sneaky author. The patents are public filings. No
>> need for tinfoil hats or detection gadgets. Those patent use rights are
>> granted, by the very design of the AL, to every downstream consumer.
>>
>> Apparently, none of you spend too much time with your corp-consumer
>> legal teams. It's brutal.
>>
>> Pretty much everything out there, IP-wise, bollixes the works. Stray
>> non-conforming license? That's out. Stray patent claim? Straight out.
>>
>> So yes, there is a project which is trying to offer code-with-patent-license
>> to the ASF, and has succeeded at their CCLA plus CLAs and would like
>> to wokr out the best way to inform / reassure users that these particular
>> patent claims are known to apply and are granted for use to whatever
>> downstream consumer wants to use the code.
>
> <full-disclosure>
> The corp in question is my employer.
> These are my opinions not my employers.
> </full-disclosure>
>
> I appreciate that the corp in question is trying to do the right thing.
>
> I would argue - based on our experience of adding the "I grant this
> patch under the ALv2" button to Jira - that doing anything over any
> beyond that which is required by our existing CLA and CCLA process will
> cause us more problems in the long run than it solves.
>
> By granting this code to the ASF under the ALv2 any and all necessary
> patent licenses are granted. That is the only thing that needs to be
> said publicly and - in my view - the only thing that should be said
> publicly. There is no problem here that needs to be solved.
>
> If the corp wants to provide the PMC (privately) with a list of patents
> it thinks it has licensed then fine but I don't see how making that list
> public helps anyone.
>
> The potential issues I see with making the list public include:
> - projects that don't publish a list of licensed patents start being
> asked by users to produce one
> - projects that do publish a list start being asked about XYZ patent
> that a random user things might apply to the project
> - committers start being asked to explicitly state if each commit is
> covered by a patent or not
>
> If we could guarantee that - for each project - we could produce a
> complete list of licensed patents then I'd have far fewer concerns. But
> I do not believe we can do that. Further, I believe that publishing
> incomplete lists will create the perception of problems where none
> exists given the clear and unambiguous language that is already present
> in the ALv2 with respect to patents.
>
> Mark
>
>
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Re: Proposal: Disclosure of patents by Apache projects
Posted by Mark Thomas <ma...@apache.org>.
On 03/06/2015 14:38, William A Rowe Jr wrote:
> On Wed, Jun 3, 2015 at 7:59 AM, Shane Curcuru <asf@shanecurcuru.org
> <ma...@shanecurcuru.org>> wrote:
>
> On 6/3/15 8:44 AM, Geir Magnusson Jr. wrote:
> > But what's the point of any of this? There's no reason to require Sneaky Author to enumerate anything because via contribution via the AL, they have granted a license to anything they have necessarily infringed by the contribution (or combined contribution and existing work)
> >
> > And I as the recipient don't really care - I know that via the patent grant in the AL, Sneaky Author can't come after me for any patents they hold (enumerated or not) that read on the work they contributed to.
> >
> > Is there a real problem we're trying to solve?
>
> I'm not aware of any Apache project asking this question, no. It seems
> Bill might have a case related to this thread, which we can address when
> it comes up.
>
>
> Indeed, there is no sneaky author. The patents are public filings. No
> need for tinfoil hats or detection gadgets. Those patent use rights are
> granted, by the very design of the AL, to every downstream consumer.
>
> Apparently, none of you spend too much time with your corp-consumer
> legal teams. It's brutal.
>
> Pretty much everything out there, IP-wise, bollixes the works. Stray
> non-conforming license? That's out. Stray patent claim? Straight out.
>
> So yes, there is a project which is trying to offer code-with-patent-license
> to the ASF, and has succeeded at their CCLA plus CLAs and would like
> to wokr out the best way to inform / reassure users that these particular
> patent claims are known to apply and are granted for use to whatever
> downstream consumer wants to use the code.
<full-disclosure>
The corp in question is my employer.
These are my opinions not my employers.
</full-disclosure>
I appreciate that the corp in question is trying to do the right thing.
I would argue - based on our experience of adding the "I grant this
patch under the ALv2" button to Jira - that doing anything over any
beyond that which is required by our existing CLA and CCLA process will
cause us more problems in the long run than it solves.
By granting this code to the ASF under the ALv2 any and all necessary
patent licenses are granted. That is the only thing that needs to be
said publicly and - in my view - the only thing that should be said
publicly. There is no problem here that needs to be solved.
If the corp wants to provide the PMC (privately) with a list of patents
it thinks it has licensed then fine but I don't see how making that list
public helps anyone.
The potential issues I see with making the list public include:
- projects that don't publish a list of licensed patents start being
asked by users to produce one
- projects that do publish a list start being asked about XYZ patent
that a random user things might apply to the project
- committers start being asked to explicitly state if each commit is
covered by a patent or not
If we could guarantee that - for each project - we could produce a
complete list of licensed patents then I'd have far fewer concerns. But
I do not believe we can do that. Further, I believe that publishing
incomplete lists will create the perception of problems where none
exists given the clear and unambiguous language that is already present
in the ALv2 with respect to patents.
Mark
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Re: Proposal: Disclosure of patents by Apache projects
Posted by William A Rowe Jr <wr...@rowe-clan.net>.
On Wed, Jun 3, 2015 at 9:10 AM, Sam Ruby <ru...@intertwingly.net> wrote:
> On Wed, Jun 3, 2015 at 9:38 AM, William A Rowe Jr <wr...@rowe-clan.net>
> wrote:
> >
> > Indeed, there is no sneaky author. The patents are public filings. No
> > need for tinfoil hats or detection gadgets. Those patent use rights are
> > granted, by the very design of the AL, to every downstream consumer.
> >
> > Apparently, none of you spend too much time with your corp-consumer
> > legal teams. It's brutal.
> >
> > Pretty much everything out there, IP-wise, bollixes the works. Stray
> > non-conforming license? That's out. Stray patent claim? Straight out.
> >
> > So yes, there is a project which is trying to offer
> code-with-patent-license
> > to the ASF, and has succeeded at their CCLA plus CLAs and would like
> > to wokr out the best way to inform / reassure users that these particular
> > patent claims are known to apply and are granted for use to whatever
> > downstream consumer wants to use the code.
>
[Antagonistic rhetorical question redacted]
> I will note that this thread has evolved considerably from an initial
> post which called into question Roy's advice:
>
> > We do not notify
> > our users that an unspecified patent might possibly be owned by some
> > third-party based on a theoretical reading of a patent license on a
> > specification that we don't even implement.
>
Precisely. This is -not- the question I raised. Although I have a lot of
fondness for the OpenSSL project due to their transparency of keeping
alive a small plain-text spreadsheet of applicable patents they expected
they had infringed, and the expiree dates of those patents. That has no
bearing on the question at hand :)
> Here you are describing a case where a patent holder is trying to do
> the right thing. This is quite a different matter than third parties
> wanting us to endorse their assertions, something the ASF has
> consistently declined to do.
>
> We also don't publicly disclose who has signed CCLAs or SG. In this
> case, it appears to be the signer's wish to disclose that information.
> The PPMC and IPMC should take a position on that request.
>
Frankly, I don't know if the attribution is desired or not. I'm asking
entirely from the perspective of ASF interests, downstream consumers,
and any potential impact on adoption.
> That being said, patents are complex beasts. A patent may require n
> conditions, and the code that the contributor has donated may only
> read on n-1. An evaluation of the risk is in order.
>
> This also is a rare enough case that I don't think that we have
> reached a point where a best practice is obvious. Perhaps a blog post
> or a page on the PPMCs site may be a good first step.
>
Exactly so, it will be rare - not that there are applicable patents, but -
in the context of the specific patents and the scope of those specific
claims. I will pursue this further out-of-band, and...
> Opening a JIRA, drafting some text, and asking for a legal review of
> that text would be in order.
>
Sounds sensible, thanks.
Bill
Re: Proposal: Disclosure of patents by Apache projects
Posted by Sam Ruby <ru...@intertwingly.net>.
On Wed, Jun 3, 2015 at 9:38 AM, William A Rowe Jr <wr...@rowe-clan.net> wrote:
> On Wed, Jun 3, 2015 at 7:59 AM, Shane Curcuru <as...@shanecurcuru.org> wrote:
>>
>> On 6/3/15 8:44 AM, Geir Magnusson Jr. wrote:
>> > But what's the point of any of this? There's no reason to require
>> > Sneaky Author to enumerate anything because via contribution via the AL,
>> > they have granted a license to anything they have necessarily infringed by
>> > the contribution (or combined contribution and existing work)
>> >
>> > And I as the recipient don't really care - I know that via the patent
>> > grant in the AL, Sneaky Author can't come after me for any patents they hold
>> > (enumerated or not) that read on the work they contributed to.
>> >
>> > Is there a real problem we're trying to solve?
>>
>> I'm not aware of any Apache project asking this question, no. It seems
>> Bill might have a case related to this thread, which we can address when
>> it comes up.
>
>
> Indeed, there is no sneaky author. The patents are public filings. No
> need for tinfoil hats or detection gadgets. Those patent use rights are
> granted, by the very design of the AL, to every downstream consumer.
>
> Apparently, none of you spend too much time with your corp-consumer
> legal teams. It's brutal.
>
> Pretty much everything out there, IP-wise, bollixes the works. Stray
> non-conforming license? That's out. Stray patent claim? Straight out.
>
> So yes, there is a project which is trying to offer code-with-patent-license
> to the ASF, and has succeeded at their CCLA plus CLAs and would like
> to wokr out the best way to inform / reassure users that these particular
> patent claims are known to apply and are granted for use to whatever
> downstream consumer wants to use the code.
>
> Is this really so difficult?
I encourage you to follow your own advice: there is no reason for this
type of antagonistic responses.
I will note that this thread has evolved considerably from an initial
post which called into question Roy's advice:
> We do not notify
> our users that an unspecified patent might possibly be owned by some
> third-party based on a theoretical reading of a patent license on a
> specification that we don't even implement.
Here you are describing a case where a patent holder is trying to do
the right thing. This is quite a different matter than third parties
wanting us to endorse their assertions, something the ASF has
consistently declined to do.
We also don't publicly disclose who has signed CCLAs or SG. In this
case, it appears to be the signer's wish to disclose that information.
The PPMC and IPMC should take a position on that request.
That being said, patents are complex beasts. A patent may require n
conditions, and the code that the contributor has donated may only
read on n-1. An evaluation of the risk is in order.
This also is a rare enough case that I don't think that we have
reached a point where a best practice is obvious. Perhaps a blog post
or a page on the PPMCs site may be a good first step.
Opening a JIRA, drafting some text, and asking for a legal review of
that text would be in order.
- Sam Ruby
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Re: Proposal: Disclosure of patents by Apache projects
Posted by William A Rowe Jr <wr...@rowe-clan.net>.
On Wed, Jun 3, 2015 at 7:59 AM, Shane Curcuru <as...@shanecurcuru.org> wrote:
> On 6/3/15 8:44 AM, Geir Magnusson Jr. wrote:
> > But what's the point of any of this? There's no reason to require
> Sneaky Author to enumerate anything because via contribution via the AL,
> they have granted a license to anything they have necessarily infringed by
> the contribution (or combined contribution and existing work)
> >
> > And I as the recipient don't really care - I know that via the patent
> grant in the AL, Sneaky Author can't come after me for any patents they
> hold (enumerated or not) that read on the work they contributed to.
> >
> > Is there a real problem we're trying to solve?
>
> I'm not aware of any Apache project asking this question, no. It seems
> Bill might have a case related to this thread, which we can address when
> it comes up.
>
Indeed, there is no sneaky author. The patents are public filings. No
need for tinfoil hats or detection gadgets. Those patent use rights are
granted, by the very design of the AL, to every downstream consumer.
Apparently, none of you spend too much time with your corp-consumer
legal teams. It's brutal.
Pretty much everything out there, IP-wise, bollixes the works. Stray
non-conforming license? That's out. Stray patent claim? Straight out.
So yes, there is a project which is trying to offer code-with-patent-license
to the ASF, and has succeeded at their CCLA plus CLAs and would like
to wokr out the best way to inform / reassure users that these particular
patent claims are known to apply and are granted for use to whatever
downstream consumer wants to use the code.
Is this really so difficult?
Re: Proposal: Disclosure of patents by Apache projects
Posted by Shane Curcuru <as...@shanecurcuru.org>.
On 6/3/15 8:44 AM, Geir Magnusson Jr. wrote:
> But what's the point of any of this? There's no reason to require Sneaky Author to enumerate anything because via contribution via the AL, they have granted a license to anything they have necessarily infringed by the contribution (or combined contribution and existing work)
>
> And I as the recipient don't really care - I know that via the patent grant in the AL, Sneaky Author can't come after me for any patents they hold (enumerated or not) that read on the work they contributed to.
>
> Is there a real problem we're trying to solve?
I'm not aware of any Apache project asking this question, no. It seems
Bill might have a case related to this thread, which we can address when
it comes up.
- Shane
>
> geir
>
>
>> On Jun 3, 2015, at 8:25 AM, Jim Jagielski <ji...@jagunet.com> wrote:
>>
>>
>>> On Jun 3, 2015, at 6:09 AM, Geir Magnusson Jr. <ge...@pobox.com> wrote:
>>>
>>>
>>> My understanding of the AL is that we don't need to be explicit. If the author of the code has patents that matter, they are providing a license and they can't sue you.
>>>
>>
>> Certainly the SGA and *CLA also provide additional "confirmation"
>> of the above; If an author wishes to list the patents, then
>> fine. We can, if we want, create a file which maintains the history and
>> heritage of that list, in a file named TO-BE-DETERMINED. However,
>> that file should have some sort of boilerplate at the top stating
>> that the ALv2 (and whatever other agreements they have signed)
>> maintains that the author has explicitly provided a patent license
>> for any patent held by that author that might be infringed by
>> said contribution and therefore the list may not be complete.
>>
>> For example, say that author has patent X, Y and Z yet is a very
>> sneaky entity. Said author provides the code and enumerates that
>> patent X and Y are granted. We do not want said author to then
>> be able to sue for patent Z. The ALv2 prevents that. And should
>> the case go to court, discovery will uncover their attempt to
>> subvert the intent.
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>>
>
>
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Re: Proposal: Disclosure of patents by Apache projects
Posted by "Geir Magnusson Jr." <ge...@sourcepoint.com>.
But what's the point of any of this? There's no reason to require Sneaky Author to enumerate anything because via contribution via the AL, they have granted a license to anything they have necessarily infringed by the contribution (or combined contribution and existing work)
And I as the recipient don't really care - I know that via the patent grant in the AL, Sneaky Author can't come after me for any patents they hold (enumerated or not) that read on the work they contributed to.
Is there a real problem we're trying to solve?
geir
> On Jun 3, 2015, at 8:25 AM, Jim Jagielski <ji...@jagunet.com> wrote:
>
>
>> On Jun 3, 2015, at 6:09 AM, Geir Magnusson Jr. <ge...@pobox.com> wrote:
>>
>>
>> My understanding of the AL is that we don't need to be explicit. If the author of the code has patents that matter, they are providing a license and they can't sue you.
>>
>
> Certainly the SGA and *CLA also provide additional "confirmation"
> of the above; If an author wishes to list the patents, then
> fine. We can, if we want, create a file which maintains the history and
> heritage of that list, in a file named TO-BE-DETERMINED. However,
> that file should have some sort of boilerplate at the top stating
> that the ALv2 (and whatever other agreements they have signed)
> maintains that the author has explicitly provided a patent license
> for any patent held by that author that might be infringed by
> said contribution and therefore the list may not be complete.
>
> For example, say that author has patent X, Y and Z yet is a very
> sneaky entity. Said author provides the code and enumerates that
> patent X and Y are granted. We do not want said author to then
> be able to sue for patent Z. The ALv2 prevents that. And should
> the case go to court, discovery will uncover their attempt to
> subvert the intent.
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Re: Proposal: Disclosure of patents by Apache projects
Posted by Jim Jagielski <ji...@jaguNET.com>.
> On Jun 3, 2015, at 6:09 AM, Geir Magnusson Jr. <ge...@pobox.com> wrote:
>
>
> My understanding of the AL is that we don't need to be explicit. If the author of the code has patents that matter, they are providing a license and they can't sue you.
>
Certainly the SGA and *CLA also provide additional "confirmation"
of the above; If an author wishes to list the patents, then
fine. We can, if we want, create a file which maintains the history and
heritage of that list, in a file named TO-BE-DETERMINED. However,
that file should have some sort of boilerplate at the top stating
that the ALv2 (and whatever other agreements they have signed)
maintains that the author has explicitly provided a patent license
for any patent held by that author that might be infringed by
said contribution and therefore the list may not be complete.
For example, say that author has patent X, Y and Z yet is a very
sneaky entity. Said author provides the code and enumerates that
patent X and Y are granted. We do not want said author to then
be able to sue for patent Z. The ALv2 prevents that. And should
the case go to court, discovery will uncover their attempt to
subvert the intent.
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Re: Proposal: Disclosure of patents by Apache projects
Posted by "Geir Magnusson Jr." <ge...@pobox.com>.
> On Jun 3, 2015, at 5:31 AM, William A Rowe Jr <wr...@rowe-clan.net> wrote:
>
> On Wed, Jun 3, 2015 at 4:22 AM, Geir Magnusson Jr. <geir@pobox.com <ma...@pobox.com>> wrote:
>
>> On Jun 3, 2015, at 5:14 AM, William A Rowe Jr <wrowe@rowe-clan.net <ma...@rowe-clan.net>> wrote:
>>
>> On Wed, Jun 3, 2015 at 4:09 AM, Geir Magnusson Jr. <geir@pobox.com <ma...@pobox.com>> wrote:
>> As a bystander, I'm confused.
>>
>> My understanding is that the patent language in the AL is designed to moot the need for this kind of discussion.
>>
>> Keeping it short, contributors provide a patent license for *any* of their patents held by those contributors that would be infringed.
>>
>> Why would we even want to try to get an enumerated list correct up front (and maintain it)?
>>
>> geir
>>
>> Thanks Gier,
>>
>> that's exactly why I'm conflicted...
>>
>> we don't enumerate copyright contributions. Why should we need to enumerate patent contributions?
>>
>> I can counter this with the fact that every commit message had better provide appropriate authorship attribution [although, you can't clarify from the commit whether the committer or their employer owns the copyright to the commit, granted.]
>
> Each contributor warrants via the ICLA that they have the right to provide the contribution under the Apache License. They could be lying, but that's a different problem to solve.
>
>>
>> There is no such transparent vehicle for patents. What would you (or others) suggest?
>
> My non-lawyer understanding is that I think there is one, and it's the same vehicle. Each contributor warrants ability to contribute under the Apache License, which provides both copyright and patent license.
>
> Suggest for what? The "Disclosure of patents" problem? I don't understand why it is a problem at all, for us or anyone else (users, other FLOSS communities, etc).
>
> I'm neither a lawyer nor pretending to be one. I'm only asking about provenance... every commit message better explain who authored the code/claimed copyright at the time it was committed. We do not seem to be as good at explaining patents that coincide with said code.
My understanding of the AL is that we don't need to be explicit. If the author of the code has patents that matter, they are providing a license and they can't sue you.
geir
Re: Proposal: Disclosure of patents by Apache projects
Posted by William A Rowe Jr <wr...@rowe-clan.net>.
On Wed, Jun 3, 2015 at 4:22 AM, Geir Magnusson Jr. <ge...@pobox.com> wrote:
>
> On Jun 3, 2015, at 5:14 AM, William A Rowe Jr <wr...@rowe-clan.net> wrote:
>
> On Wed, Jun 3, 2015 at 4:09 AM, Geir Magnusson Jr. <ge...@pobox.com> wrote:
>
>> As a bystander, I'm confused.
>>
>> My understanding is that the patent language in the AL is designed to
>> moot the need for this kind of discussion.
>>
>> Keeping it short, contributors provide a patent license for *any* of
>> their patents held by those contributors that would be infringed.
>>
>> Why would we even want to try to get an enumerated list correct up front
>> (and maintain it)?
>>
>> geir
>>
>
> Thanks Gier,
>
> that's exactly why I'm conflicted...
>
> we don't enumerate copyright contributions. Why should we need to
> enumerate patent contributions?
>
> I can counter this with the fact that every commit message had better
> provide appropriate authorship attribution [although, you can't clarify
> from the commit whether the committer or their employer owns the copyright
> to the commit, granted.]
>
>
> Each contributor warrants via the ICLA that they have the right to provide
> the contribution under the Apache License. They could be lying, but that's
> a different problem to solve.
>
>
> There is no such transparent vehicle for patents. What would you (or
> others) suggest?
>
>
> My non-lawyer understanding is that I think there is one, and it's the
> same vehicle. Each contributor warrants ability to contribute under the
> Apache License, which provides both copyright and patent license.
>
> Suggest for what? The "Disclosure of patents" problem? I don't
> understand why it is a problem at all, for us or anyone else (users, other
> FLOSS communities, etc).
>
I'm neither a lawyer nor pretending to be one. I'm only asking about
provenance... every commit message better explain who authored the
code/claimed copyright at the time it was committed. We do not seem to be
as good at explaining patents that coincide with said code.
Re: Proposal: Disclosure of patents by Apache projects
Posted by "Geir Magnusson Jr." <ge...@pobox.com>.
> On Jun 3, 2015, at 5:14 AM, William A Rowe Jr <wr...@rowe-clan.net> wrote:
>
> On Wed, Jun 3, 2015 at 4:09 AM, Geir Magnusson Jr. <geir@pobox.com <ma...@pobox.com>> wrote:
> As a bystander, I'm confused.
>
> My understanding is that the patent language in the AL is designed to moot the need for this kind of discussion.
>
> Keeping it short, contributors provide a patent license for *any* of their patents held by those contributors that would be infringed.
>
> Why would we even want to try to get an enumerated list correct up front (and maintain it)?
>
> geir
>
> Thanks Gier,
>
> that's exactly why I'm conflicted...
>
> we don't enumerate copyright contributions. Why should we need to enumerate patent contributions?
>
> I can counter this with the fact that every commit message had better provide appropriate authorship attribution [although, you can't clarify from the commit whether the committer or their employer owns the copyright to the commit, granted.]
Each contributor warrants via the ICLA that they have the right to provide the contribution under the Apache License. They could be lying, but that's a different problem to solve.
>
> There is no such transparent vehicle for patents. What would you (or others) suggest?
My non-lawyer understanding is that I think there is one, and it's the same vehicle. Each contributor warrants ability to contribute under the Apache License, which provides both copyright and patent license.
Suggest for what? The "Disclosure of patents" problem? I don't understand why it is a problem at all, for us or anyone else (users, other FLOSS communities, etc).
geir
RE: Proposal: Disclosure of patents by Apache projects
Posted by Lawrence Rosen <lr...@rosenlaw.com>.
Ross,
1) If you prefer to have patent notices sprinkled across Apache documentation rather than in a consolidated NOTICE file that 99.9% of all users can ignore, how strange that will be.
2) Independent implementations are a totally serious and frequent issue at ASF. On several occasions Apache projects have moved elsewhere or been abandoned merely because of a licensing issue between open source alternatives. The latest such issue is AOO/LO, where the dialogue rests in some part on ASF's willingness to allow MPL-licensed works to benefit from The Apache Way community without FOSS-license disputes?
3) I suggest we be very careful making statements such as "We never knowingly infringe on a patent and so this is meaningless." Sometimes we knowingly infringe on a patent that is FOSS-licensed to us or included in some industry standard we've implemented. Sometimes we may knowingly infringe on a patent that we seriously believe is "BS" and not worthy of the paper it is printed on, but our knowledge protects us from willful infringement damages. In no event do we willfully blind ourselves to patents or pretend that they don't exist in software around the world.
/Larry
From: Ross Gardler (MS OPEN TECH) [mailto:Ross.Gardler@microsoft.com]
Sent: Wednesday, June 3, 2015 12:42 PM
To: legal-discuss@apache.org; lrosen@rosenlaw.com
Subject: RE: Proposal: Disclosure of patents by Apache projects
To point 1) If a patent owner who contributes to an Apache project wants to notify people of the existence of those patents then they can do so through a contribution to our documentation. Nothing is stopping that. We do not need to have a policy to enforce it and thus add yet more overhead to our PMCs.
To point 2) independent implementations are not the concern of the ASF.
To point 3) We never knowingly infringe on a patent and so this is meaningless. This fact is stated all over our mailing lists and quite possibly our website too. If it would be helpful we could have a clear and explicit statement in our policy docks to the effect that “either (1) have a FOSS license to it, or (2) in our early but serious view we don't believe we infringe” with the addition of “on any patents”.
From: Lawrence Rosen [mailto:lrosen@rosenlaw.com]
Sent: Wednesday, June 3, 2015 12:21 PM
To: legal-discuss@apache.org <ma...@apache.org>
Cc: Lawrence Rosen
Subject: RE: Proposal: Disclosure of patents by Apache projects
A great question has been asked:
> Why should we need to enumerate patent contributions?
We own no patents and, as has repeatedly been pointed out, our ALv2 license itself already includes a generous patent grant for use and aggregation.
There are at least three other good reasons for us to enumerate patent contributions to ASF:
1. A patent owner can obtain infringement damages only from the date of such a notice. 35 USC 287(a). The patent owner probably wants to have its patents enumerated to protect its own financial interests in that patent.
2. While certain patent claims have been licensed to ASF under a FOSS license and then to the world under ALv2, there may be other claims in those patents or (non-derivative) independent implementations that aren't FOSS-licensed. Take notice.
3. This notice is ASF's defense to willful blindness or willful infringement in an inducing patent infringement case. It asserts that we know of the patent and either (1) have a FOSS license to it, or (2) in our early but serious view we don't believe we infringe.
/Larry
Lawrence Rosen
"If this were legal advice it would have been accompanied by a bill."
From: William A Rowe Jr [mailto:wrowe@rowe-clan.net]
Sent: Wednesday, June 3, 2015 2:14 AM
To: legal-discuss@apache.org <ma...@apache.org>
Subject: Re: Proposal: Disclosure of patents by Apache projects
On Wed, Jun 3, 2015 at 4:09 AM, Geir Magnusson Jr. <geir@pobox.com <ma...@pobox.com> > wrote:
As a bystander, I'm confused.
My understanding is that the patent language in the AL is designed to moot the need for this kind of discussion.
Keeping it short, contributors provide a patent license for *any* of their patents held by those contributors that would be infringed.
Why would we even want to try to get an enumerated list correct up front (and maintain it)?
geir
Thanks Gier,
that's exactly why I'm conflicted...
we don't enumerate copyright contributions. Why should we need to enumerate patent contributions?
I can counter this with the fact that every commit message had better provide appropriate authorship attribution [although, you can't clarify from the commit whether the committer or their employer owns the copyright to the commit, granted.]
There is no such transparent vehicle for patents. What would you (or others) suggest?
Re: Proposal: Disclosure of patents by Apache projects
Posted by William A Rowe Jr <wr...@rowe-clan.net>.
On Wed, Jun 3, 2015 at 2:41 PM, Ross Gardler (MS OPEN TECH) <
Ross.Gardler@microsoft.com> wrote:
>
>
> To point 2) independent implementations are not the concern of the ASF.
>
>
Actually, they are. I independently re-implemented fnmatch here at the ASF,
dual licensing it under the BSD and the AL for the various BSD projects and
Apache APR Project. At the time the recursive implementation had proven
to be a security risk, and the GNU clib hack/re-implementation would have
been of no help to these communities, due to licensing.
I can envision others taking ASF API's and re-implementing them, and for
us to encourage that, even as a fork within a project or as or within
another
PMC. What is to protect the ASF in that case, if we don't harvest any AL
patent grants explicitly?
RE: Proposal: Disclosure of patents by Apache projects
Posted by "Ross Gardler (MS OPEN TECH)" <Ro...@microsoft.com>.
To point 1) If a patent owner who contributes to an Apache project wants to notify people of the existence of those patents then they can do so through a contribution to our documentation. Nothing is stopping that. We do not need to have a policy to enforce it and thus add yet more overhead to our PMCs.
To point 2) independent implementations are not the concern of the ASF.
To point 3) We never knowingly infringe on a patent and so this is meaningless. This fact is stated all over our mailing lists and quite possibly our website too. If it would be helpful we could have a clear and explicit statement in our policy docks to the effect that “either (1) have a FOSS license to it, or (2) in our early but serious view we don't believe we infringe” with the addition of “on any patents”.
From: Lawrence Rosen [mailto:lrosen@rosenlaw.com]
Sent: Wednesday, June 3, 2015 12:21 PM
To: legal-discuss@apache.org
Cc: Lawrence Rosen
Subject: RE: Proposal: Disclosure of patents by Apache projects
A great question has been asked:
> Why should we need to enumerate patent contributions?
We own no patents and, as has repeatedly been pointed out, our ALv2 license itself already includes a generous patent grant for use and aggregation.
There are at least three other good reasons for us to enumerate patent contributions to ASF:
1. A patent owner can obtain infringement damages only from the date of such a notice. 35 USC 287(a). The patent owner probably wants to have its patents enumerated to protect its own financial interests in that patent.
2. While certain patent claims have been licensed to ASF under a FOSS license and then to the world under ALv2, there may be other claims in those patents or (non-derivative) independent implementations that aren't FOSS-licensed. Take notice.
3. This notice is ASF's defense to willful blindness or willful infringement in an inducing patent infringement case. It asserts that we know of the patent and either (1) have a FOSS license to it, or (2) in our early but serious view we don't believe we infringe.
/Larry
Lawrence Rosen
"If this were legal advice it would have been accompanied by a bill."
From: William A Rowe Jr [mailto:wrowe@rowe-clan.net]
Sent: Wednesday, June 3, 2015 2:14 AM
To: legal-discuss@apache.org<ma...@apache.org>
Subject: Re: Proposal: Disclosure of patents by Apache projects
On Wed, Jun 3, 2015 at 4:09 AM, Geir Magnusson Jr. <ge...@pobox.com>> wrote:
As a bystander, I'm confused.
My understanding is that the patent language in the AL is designed to moot the need for this kind of discussion.
Keeping it short, contributors provide a patent license for *any* of their patents held by those contributors that would be infringed.
Why would we even want to try to get an enumerated list correct up front (and maintain it)?
geir
Thanks Gier,
that's exactly why I'm conflicted...
we don't enumerate copyright contributions. Why should we need to enumerate patent contributions?
I can counter this with the fact that every commit message had better provide appropriate authorship attribution [although, you can't clarify from the commit whether the committer or their employer owns the copyright to the commit, granted.]
There is no such transparent vehicle for patents. What would you (or others) suggest?
Re: Proposal: Disclosure of patents by Apache projects
Posted by Alex Harui <ah...@adobe.com>.
I probably shouldn’t ask this, but what are the “financial interests” in a patent that has been licensed essentially to everybody?
-Alex
From: Lawrence Rosen <lr...@rosenlaw.com>>
Reply-To: "legal-discuss@apache.org<ma...@apache.org>" <le...@apache.org>>, "lrosen@rosenlaw.com<ma...@rosenlaw.com>" <lr...@rosenlaw.com>>
Date: Wednesday, June 3, 2015 at 12:21 PM
To: "legal-discuss@apache.org<ma...@apache.org>" <le...@apache.org>>
Cc: Lawrence Rosen <lr...@rosenlaw.com>>
Subject: RE: Proposal: Disclosure of patents by Apache projects
A great question has been asked:
> Why should we need to enumerate patent contributions?
We own no patents and, as has repeatedly been pointed out, our ALv2 license itself already includes a generous patent grant for use and aggregation.
There are at least three other good reasons for us to enumerate patent contributions to ASF:
1. A patent owner can obtain infringement damages only from the date of such a notice. 35 USC 287(a). The patent owner probably wants to have its patents enumerated to protect its own financial interests in that patent.
2. While certain patent claims have been licensed to ASF under a FOSS license and then to the world under ALv2, there may be other claims in those patents or (non-derivative) independent implementations that aren't FOSS-licensed. Take notice.
3. This notice is ASF's defense to willful blindness or willful infringement in an inducing patent infringement case. It asserts that we know of the patent and either (1) have a FOSS license to it, or (2) in our early but serious view we don't believe we infringe.
/Larry
Lawrence Rosen
"If this were legal advice it would have been accompanied by a bill."
From: William A Rowe Jr [mailto:wrowe@rowe-clan.net]
Sent: Wednesday, June 3, 2015 2:14 AM
To: legal-discuss@apache.org<ma...@apache.org>
Subject: Re: Proposal: Disclosure of patents by Apache projects
On Wed, Jun 3, 2015 at 4:09 AM, Geir Magnusson Jr. <ge...@pobox.com>> wrote:
As a bystander, I'm confused.
My understanding is that the patent language in the AL is designed to moot the need for this kind of discussion.
Keeping it short, contributors provide a patent license for *any* of their patents held by those contributors that would be infringed.
Why would we even want to try to get an enumerated list correct up front (and maintain it)?
geir
Thanks Gier,
that's exactly why I'm conflicted...
we don't enumerate copyright contributions. Why should we need to enumerate patent contributions?
I can counter this with the fact that every commit message had better provide appropriate authorship attribution [although, you can't clarify from the commit whether the committer or their employer owns the copyright to the commit, granted.]
There is no such transparent vehicle for patents. What would you (or others) suggest?
Re: Proposal: Disclosure of patents by Apache projects
Posted by Louis Suárez-Potts <lu...@gmail.com>.
> On 03 Jun 2015, at 21:05, Lawrence Rosen <lr...@rosenlaw.com> wrote:
>
> Louis Suárez-Potts asked:
> Perhaps I missed something. Has there been a case or similar occasion that would cause us (ASF, that is) to assert more plainly than is now done patent contributions?
>
> Not an on-point case that I'm aware of other than the reasons I previously cited here (copied below).
>
> But the patent law in the US is evolving. Just within the past week on this list I quoted two very recent cases, one from the U.S. Supreme Court and one from the CAFC, that reflect a different law for inducing patent infringement (what ASF does all the time, presumably under license!!!) than what was in effect when ASF was a babe. That's what ASF and our direct downstream distributors are now facing: A possibility of inducing infringement through willful blindness merely by pretending that patents don't affect us.
Indeed; and this is even without consideration of whatever TISA/TTP and etc., might harbour. Which is to say that though I have found this discussion to be interesting, in the absence of specific decisions, I had to wonder about what was *not* being written.
>
> Nor is ASF any longer a babe. When one of the primary ASF projects, AOO, delivers software to over a hundred million users around the world, I assume that a grown up like you is professional and diligent with respect to IP, including patents.
Of course. But I’m also aware that law being what it is and not being always as one would want it to be around the world (i.e., it’s not uniform in letter or spirit), that there’s always the unexpected. More materially, from my perspective, I’m interested in seeing that the processes of community collaboration are carried out as desired—and promised.
>
> But hey, ASF has no money to sue for and I'm not ASF's attorney. :-) The issue is primarily one for our downstream distributors to pay their own lawyers to advise them. I assume they are doing that right now, which is why they are reluctant to speak up here.
>
> /Larry
>
best
louis
RE: Proposal: Disclosure of patents by Apache projects
Posted by Lawrence Rosen <lr...@rosenlaw.com>.
Louis Suárez-Potts asked:
Perhaps I missed something. Has there been a case or similar occasion that
would cause us (ASF, that is) to assert more plainly than is now done patent
contributions?
Not an on-point case that I'm aware of other than the reasons I previously
cited here (copied below).
But the patent law in the US is evolving. Just within the past week on this
list I quoted two very recent cases, one from the U.S. Supreme Court and one
from the CAFC, that reflect a different law for inducing patent infringement
(what ASF does all the time, presumably under license!!!) than what was in
effect when ASF was a babe. That's what ASF and our direct downstream
distributors are now facing: A possibility of inducing infringement through
willful blindness merely by pretending that patents don't affect us.
Nor is ASF any longer a babe. When one of the primary ASF projects, AOO,
delivers software to over a hundred million users around the world, I assume
that a grown up like you is professional and diligent with respect to IP,
including patents.
But hey, ASF has no money to sue for and I'm not ASF's attorney. :-) The
issue is primarily one for our downstream distributors to pay their own
lawyers to advise them. I assume they are doing that right now, which is why
they are reluctant to speak up here.
/Larry
Lawrence Rosen
"If this were legal advice it would have been accompanied by a bill."
-----Original Message-----
From: Louis Suárez-Potts [mailto:luispo@gmail.com]
Sent: Wednesday, June 3, 2015 4:27 PM
To: legal-discuss@apache.org; lrosen@rosenlaw.com
Subject: Re: Proposal: Disclosure of patents by Apache projects
> On 03 Jun 2015, at 15:21, Lawrence Rosen < <ma...@rosenlaw.com>
lrosen@rosenlaw.com> wrote:
>
> A great question has been asked:
> > Why should we need to enumerate patent contributions?
>
> We own no patents and, as has repeatedly been pointed out, our ALv2
license itself already includes a grant for use and aggregation.
>
> There are at least three other good reasons for us to enumerate patent
contributions to ASF:
>
> 1. A patent owner can obtain infringement damages only from the date of
such a notice. 35 USC 287(a). The patent owner probably wants to have its
patents enumerated to protect its own financial interests in that patent.
>
> 2. While certain patent claims have been licensed to ASF under a FOSS
license and then to the worldother claims in those patents or
(non-derivative) independent implementations that aren't FOSS-licensed. Take
notice.
>
> 3. This notice is ASF's defense to willful blindness or willful
infringement in an inducing patent infringement case. It asserts that we
know of the patent and either (1) have a FOSS license to it, or (2) in our
early but serious view we don't believe we infringe.
>
Larry,
Perhaps I missed something. Has there been a case or similar occasion that
would cause us (ASF, that is) to assert more plainly than is now done patent
contributions?
louis
Re: Proposal: Disclosure of patents by Apache projects
Posted by Louis Suárez-Potts <lu...@gmail.com>.
> On 03 Jun 2015, at 15:21, Lawrence Rosen <lr...@rosenlaw.com> wrote:
>
> A great question has been asked:
> > Why should we need to enumerate patent contributions?
>
> We own no patents and, as has repeatedly been pointed out, our ALv2 license itself already includes a grant for use and aggregation.
>
> There are at least three other good reasons for us to enumerate patent contributions to ASF:
>
> 1. A patent owner can obtain infringement damages only from the date of such a notice. 35 USC 287(a). The patent owner probably wants to have its patents enumerated to protect its own financial interests in that patent.
>
> 2. While certain patent claims have been licensed to ASF under a FOSS license and then to the worldother claims in those patents or (non-derivative) independent implementations that aren't FOSS-licensed. Take notice.
>
> 3. This notice is ASF's defense to willful blindness or willful infringement in an inducing patent infringement case. It asserts that we know of the patent and either (1) have a FOSS license to it, or (2) in our early but serious view we don't believe we infringe.
>
Larry,
Perhaps I missed something. Has there been a case or similar occasion that would cause us (ASF, that is) to assert more plainly than is now done patent contributions?
louis
RE: Proposal: Disclosure of patents by Apache projects
Posted by Lawrence Rosen <lr...@rosenlaw.com>.
A great question has been asked:
> Why should we need to enumerate patent contributions?
We own no patents and, as has repeatedly been pointed out, our ALv2 license itself already includes a generous patent grant for use and aggregation.
There are at least three other good reasons for us to enumerate patent contributions to ASF:
1. A patent owner can obtain infringement damages only from the date of such a notice. 35 USC 287(a). The patent owner probably wants to have its patents enumerated to protect its own financial interests in that patent.
2. While certain patent claims have been licensed to ASF under a FOSS license and then to the world under ALv2, there may be other claims in those patents or (non-derivative) independent implementations that aren't FOSS-licensed. Take notice.
3. This notice is ASF's defense to willful blindness or willful infringement in an inducing patent infringement case. It asserts that we know of the patent and either (1) have a FOSS license to it, or (2) in our early but serious view we don't believe we infringe.
/Larry
Lawrence Rosen
"If this were legal advice it would have been accompanied by a bill."
From: William A Rowe Jr [mailto:wrowe@rowe-clan.net]
Sent: Wednesday, June 3, 2015 2:14 AM
To: legal-discuss@apache.org
Subject: Re: Proposal: Disclosure of patents by Apache projects
On Wed, Jun 3, 2015 at 4:09 AM, Geir Magnusson Jr. <geir@pobox.com <ma...@pobox.com> > wrote:
As a bystander, I'm confused.
My understanding is that the patent language in the AL is designed to moot the need for this kind of discussion.
Keeping it short, contributors provide a patent license for *any* of their patents held by those contributors that would be infringed.
Why would we even want to try to get an enumerated list correct up front (and maintain it)?
geir
Thanks Gier,
that's exactly why I'm conflicted...
we don't enumerate copyright contributions. Why should we need to enumerate patent contributions?
I can counter this with the fact that every commit message had better provide appropriate authorship attribution [although, you can't clarify from the commit whether the committer or their employer owns the copyright to the commit, granted.]
There is no such transparent vehicle for patents. What would you (or others) suggest?
Re: Proposal: Disclosure of patents by Apache projects
Posted by William A Rowe Jr <wr...@rowe-clan.net>.
On Wed, Jun 3, 2015 at 4:09 AM, Geir Magnusson Jr. <ge...@pobox.com> wrote:
> As a bystander, I'm confused.
>
> My understanding is that the patent language in the AL is designed to moot
> the need for this kind of discussion.
>
> Keeping it short, contributors provide a patent license for *any* of their
> patents held by those contributors that would be infringed.
>
> Why would we even want to try to get an enumerated list correct up front
> (and maintain it)?
>
> geir
>
Thanks Gier,
that's exactly why I'm conflicted...
we don't enumerate copyright contributions. Why should we need to
enumerate patent contributions?
I can counter this with the fact that every commit message had better
provide appropriate authorship attribution [although, you can't clarify
from the commit whether the committer or their employer owns the copyright
to the commit, granted.]
There is no such transparent vehicle for patents. What would you (or
others) suggest?
Re: Proposal: Disclosure of patents by Apache projects
Posted by "Geir Magnusson Jr." <ge...@pobox.com>.
As a bystander, I'm confused.
My understanding is that the patent language in the AL is designed to moot the need for this kind of discussion.
Keeping it short, contributors provide a patent license for *any* of their patents held by those contributors that would be infringed.
Why would we even want to try to get an enumerated list correct up front (and maintain it)?
geir
> On Jun 3, 2015, at 3:34 AM, William A Rowe Jr <wr...@rowe-clan.net> wrote:
>
> And you are not helping the process by suggesting each and every inquiry enters the back door. We don't answer to the faceless god. [Sorry, couldn't help injecting some GoT humor]
>
> There is nothing private. The Geode project intersects with a number of public Patent applications, granted, and freely shared with the code under th AL. I have very long refused to see legal-private@a.o, that I have nothing to say in any court on such nonsense. There is no reason for yours, or Greg's antagonistic responses.
>
> We will post the patent ID's tomorrow and seek the VP's considered and perhaps delayed response as the issue is considered behind closed doors.
>
> On Jun 3, 2015 2:23 AM, "Sam Ruby" <rubys@intertwingly.net <ma...@intertwingly.net>> wrote:
> On Wed, Jun 3, 2015 at 2:57 AM, William A Rowe Jr <wrowe@rowe-clan.net <ma...@rowe-clan.net>> wrote:
> > Brilliant, that person is on this channel, thanks sir.
> >
> > An answer, Mr. VP?
> >
> > (Not sure why you posited that reply, Sam... That officer might be equally
> > perplexed as to how the ASF should address this, I myself am of several
> > minds on the best course of action.)
>
> It has been relentlessly and repeatedly pointed out that Jim is not
> qualified to provide legal advice.
>
> That is not in dispute. The board feels that Jim is qualified to
> receive, process, and act on legal advice.
>
> You have shared some generalities on this list. I am encouraging you
> to share specifics directly with Jim. There may be risks involved,
> and Jim has access to the resources needed to evaluate those risks and
> propose a course of action.
>
> - Sam Ruby
>
>
> > On Jun 3, 2015 1:41 AM, "Sam Ruby" <rubys@intertwingly.net <ma...@intertwingly.net>> wrote:
> >>
> >> On Wed, Jun 3, 2015 at 1:03 AM, William A Rowe Jr <wrowe@rowe-clan.net <ma...@rowe-clan.net>>
> >> wrote:
> >> > On Tue, Jun 2, 2015 at 9:03 PM, Greg Stein <gstein@gmail.com <ma...@gmail.com>> wrote:
> >> >>
> >> >> On Tue, Jun 2, 2015 at 5:51 PM, Lawrence Rosen <lrosen@rosenlaw.com <ma...@rosenlaw.com>>
> >> >> wrote:
> >> >> >...
> >> >>>
> >> >>> When an Apache project purposely infringes an actual patent that we
> >> >>> have
> >> >>> a FOSS license to, it would be polite to say something like:
> >> >>
> >> >>
> >> >> Pure hypothetical. We don't, so this "solution" is premature. We don't
> >> >> know the characteristics of any patents in our products, nor we do know
> >> >> what
> >> >> the holders/owners want to do about it.
> >> >>
> >> >> There are way too many variables, making this hypothetical Q&A just so
> >> >> many unwanted bits in the ether. We don't have an actual
> >> >> question/situation,
> >> >> so this speculation of what we would do is ... speculation.
> >> >
> >> > Calm down, deep breaths everyone.
> >> >
> >> > An incoming project I'm mentoring has - and the custodians and authors
> >> > and IP holders are conveying - certain applicable patents.
> >> >
> >> > Untested patents, yes. I believe they should be described throughout
> >> > any ASF vehicles as "patent claims", not purely patents. Could be
> >> > broken. Might never be broken. All that aside...
> >> >
> >> > In any case, patents No. X, Y, Z and Q are being passed on through
> >> > the AL 2.0 language, and my question is how to reassure anyone who
> >> > is reviewing the provenance of the code in question that, yes, these
> >> > specific patents are known of and were conveyed to the licensee?
> >>
> >> This is exactly why we have counsel available to VP of Legal Affairs.
> >>
> >> - Sam Ruby
> >>
> >> ---------------------------------------------------------------------
> >> To unsubscribe, e-mail: legal-discuss-unsubscribe@apache.org <ma...@apache.org>
> >> For additional commands, e-mail: legal-discuss-help@apache.org <ma...@apache.org>
> >>
> >
>
> ---------------------------------------------------------------------
> To unsubscribe, e-mail: legal-discuss-unsubscribe@apache.org <ma...@apache.org>
> For additional commands, e-mail: legal-discuss-help@apache.org <ma...@apache.org>
>
Re: Proposal: Disclosure of patents by Apache projects
Posted by William A Rowe Jr <wr...@rowe-clan.net>.
And you are not helping the process by suggesting each and every inquiry
enters the back door. We don't answer to the faceless god. [Sorry,
couldn't help injecting some GoT humor]
There is nothing private. The Geode project intersects with a number of
public Patent applications, granted, and freely shared with the code under
th AL. I have very long refused to see legal-private@a.o, that I have
nothing to say in any court on such nonsense. There is no reason for
yours, or Greg's antagonistic responses.
We will post the patent ID's tomorrow and seek the VP's considered and
perhaps delayed response as the issue is considered behind closed doors.
On Jun 3, 2015 2:23 AM, "Sam Ruby" <ru...@intertwingly.net> wrote:
> On Wed, Jun 3, 2015 at 2:57 AM, William A Rowe Jr <wr...@rowe-clan.net>
> wrote:
> > Brilliant, that person is on this channel, thanks sir.
> >
> > An answer, Mr. VP?
> >
> > (Not sure why you posited that reply, Sam... That officer might be
> equally
> > perplexed as to how the ASF should address this, I myself am of several
> > minds on the best course of action.)
>
> It has been relentlessly and repeatedly pointed out that Jim is not
> qualified to provide legal advice.
>
> That is not in dispute. The board feels that Jim is qualified to
> receive, process, and act on legal advice.
>
> You have shared some generalities on this list. I am encouraging you
> to share specifics directly with Jim. There may be risks involved,
> and Jim has access to the resources needed to evaluate those risks and
> propose a course of action.
>
> - Sam Ruby
>
>
> > On Jun 3, 2015 1:41 AM, "Sam Ruby" <ru...@intertwingly.net> wrote:
> >>
> >> On Wed, Jun 3, 2015 at 1:03 AM, William A Rowe Jr <wr...@rowe-clan.net>
> >> wrote:
> >> > On Tue, Jun 2, 2015 at 9:03 PM, Greg Stein <gs...@gmail.com> wrote:
> >> >>
> >> >> On Tue, Jun 2, 2015 at 5:51 PM, Lawrence Rosen <lr...@rosenlaw.com>
> >> >> wrote:
> >> >> >...
> >> >>>
> >> >>> When an Apache project purposely infringes an actual patent that we
> >> >>> have
> >> >>> a FOSS license to, it would be polite to say something like:
> >> >>
> >> >>
> >> >> Pure hypothetical. We don't, so this "solution" is premature. We
> don't
> >> >> know the characteristics of any patents in our products, nor we do
> know
> >> >> what
> >> >> the holders/owners want to do about it.
> >> >>
> >> >> There are way too many variables, making this hypothetical Q&A just
> so
> >> >> many unwanted bits in the ether. We don't have an actual
> >> >> question/situation,
> >> >> so this speculation of what we would do is ... speculation.
> >> >
> >> > Calm down, deep breaths everyone.
> >> >
> >> > An incoming project I'm mentoring has - and the custodians and authors
> >> > and IP holders are conveying - certain applicable patents.
> >> >
> >> > Untested patents, yes. I believe they should be described throughout
> >> > any ASF vehicles as "patent claims", not purely patents. Could be
> >> > broken. Might never be broken. All that aside...
> >> >
> >> > In any case, patents No. X, Y, Z and Q are being passed on through
> >> > the AL 2.0 language, and my question is how to reassure anyone who
> >> > is reviewing the provenance of the code in question that, yes, these
> >> > specific patents are known of and were conveyed to the licensee?
> >>
> >> This is exactly why we have counsel available to VP of Legal Affairs.
> >>
> >> - Sam Ruby
> >>
> >> ---------------------------------------------------------------------
> >> To unsubscribe, e-mail: legal-discuss-unsubscribe@apache.org
> >> For additional commands, e-mail: legal-discuss-help@apache.org
> >>
> >
>
> ---------------------------------------------------------------------
> To unsubscribe, e-mail: legal-discuss-unsubscribe@apache.org
> For additional commands, e-mail: legal-discuss-help@apache.org
>
>
Re: Proposal: Disclosure of patents by Apache projects
Posted by Sam Ruby <ru...@intertwingly.net>.
On Wed, Jun 3, 2015 at 2:57 AM, William A Rowe Jr <wr...@rowe-clan.net> wrote:
> Brilliant, that person is on this channel, thanks sir.
>
> An answer, Mr. VP?
>
> (Not sure why you posited that reply, Sam... That officer might be equally
> perplexed as to how the ASF should address this, I myself am of several
> minds on the best course of action.)
It has been relentlessly and repeatedly pointed out that Jim is not
qualified to provide legal advice.
That is not in dispute. The board feels that Jim is qualified to
receive, process, and act on legal advice.
You have shared some generalities on this list. I am encouraging you
to share specifics directly with Jim. There may be risks involved,
and Jim has access to the resources needed to evaluate those risks and
propose a course of action.
- Sam Ruby
> On Jun 3, 2015 1:41 AM, "Sam Ruby" <ru...@intertwingly.net> wrote:
>>
>> On Wed, Jun 3, 2015 at 1:03 AM, William A Rowe Jr <wr...@rowe-clan.net>
>> wrote:
>> > On Tue, Jun 2, 2015 at 9:03 PM, Greg Stein <gs...@gmail.com> wrote:
>> >>
>> >> On Tue, Jun 2, 2015 at 5:51 PM, Lawrence Rosen <lr...@rosenlaw.com>
>> >> wrote:
>> >> >...
>> >>>
>> >>> When an Apache project purposely infringes an actual patent that we
>> >>> have
>> >>> a FOSS license to, it would be polite to say something like:
>> >>
>> >>
>> >> Pure hypothetical. We don't, so this "solution" is premature. We don't
>> >> know the characteristics of any patents in our products, nor we do know
>> >> what
>> >> the holders/owners want to do about it.
>> >>
>> >> There are way too many variables, making this hypothetical Q&A just so
>> >> many unwanted bits in the ether. We don't have an actual
>> >> question/situation,
>> >> so this speculation of what we would do is ... speculation.
>> >
>> > Calm down, deep breaths everyone.
>> >
>> > An incoming project I'm mentoring has - and the custodians and authors
>> > and IP holders are conveying - certain applicable patents.
>> >
>> > Untested patents, yes. I believe they should be described throughout
>> > any ASF vehicles as "patent claims", not purely patents. Could be
>> > broken. Might never be broken. All that aside...
>> >
>> > In any case, patents No. X, Y, Z and Q are being passed on through
>> > the AL 2.0 language, and my question is how to reassure anyone who
>> > is reviewing the provenance of the code in question that, yes, these
>> > specific patents are known of and were conveyed to the licensee?
>>
>> This is exactly why we have counsel available to VP of Legal Affairs.
>>
>> - Sam Ruby
>>
>> ---------------------------------------------------------------------
>> To unsubscribe, e-mail: legal-discuss-unsubscribe@apache.org
>> For additional commands, e-mail: legal-discuss-help@apache.org
>>
>
---------------------------------------------------------------------
To unsubscribe, e-mail: legal-discuss-unsubscribe@apache.org
For additional commands, e-mail: legal-discuss-help@apache.org
Re: Proposal: Disclosure of patents by Apache projects
Posted by William A Rowe Jr <wr...@rowe-clan.net>.
Brilliant, that person is on this channel, thanks sir.
An answer, Mr. VP?
(Not sure why you posited that reply, Sam... That officer might be equally
perplexed as to how the ASF should address this, I myself am of several
minds on the best course of action.)
On Jun 3, 2015 1:41 AM, "Sam Ruby" <ru...@intertwingly.net> wrote:
> On Wed, Jun 3, 2015 at 1:03 AM, William A Rowe Jr <wr...@rowe-clan.net>
> wrote:
> > On Tue, Jun 2, 2015 at 9:03 PM, Greg Stein <gs...@gmail.com> wrote:
> >>
> >> On Tue, Jun 2, 2015 at 5:51 PM, Lawrence Rosen <lr...@rosenlaw.com>
> >> wrote:
> >> >...
> >>>
> >>> When an Apache project purposely infringes an actual patent that we
> have
> >>> a FOSS license to, it would be polite to say something like:
> >>
> >>
> >> Pure hypothetical. We don't, so this "solution" is premature. We don't
> >> know the characteristics of any patents in our products, nor we do know
> what
> >> the holders/owners want to do about it.
> >>
> >> There are way too many variables, making this hypothetical Q&A just so
> >> many unwanted bits in the ether. We don't have an actual
> question/situation,
> >> so this speculation of what we would do is ... speculation.
> >
> > Calm down, deep breaths everyone.
> >
> > An incoming project I'm mentoring has - and the custodians and authors
> > and IP holders are conveying - certain applicable patents.
> >
> > Untested patents, yes. I believe they should be described throughout
> > any ASF vehicles as "patent claims", not purely patents. Could be
> > broken. Might never be broken. All that aside...
> >
> > In any case, patents No. X, Y, Z and Q are being passed on through
> > the AL 2.0 language, and my question is how to reassure anyone who
> > is reviewing the provenance of the code in question that, yes, these
> > specific patents are known of and were conveyed to the licensee?
>
> This is exactly why we have counsel available to VP of Legal Affairs.
>
> - Sam Ruby
>
> ---------------------------------------------------------------------
> To unsubscribe, e-mail: legal-discuss-unsubscribe@apache.org
> For additional commands, e-mail: legal-discuss-help@apache.org
>
>
Re: Proposal: Disclosure of patents by Apache projects
Posted by Sam Ruby <ru...@intertwingly.net>.
On Wed, Jun 3, 2015 at 1:03 AM, William A Rowe Jr <wr...@rowe-clan.net> wrote:
> On Tue, Jun 2, 2015 at 9:03 PM, Greg Stein <gs...@gmail.com> wrote:
>>
>> On Tue, Jun 2, 2015 at 5:51 PM, Lawrence Rosen <lr...@rosenlaw.com>
>> wrote:
>> >...
>>>
>>> When an Apache project purposely infringes an actual patent that we have
>>> a FOSS license to, it would be polite to say something like:
>>
>>
>> Pure hypothetical. We don't, so this "solution" is premature. We don't
>> know the characteristics of any patents in our products, nor we do know what
>> the holders/owners want to do about it.
>>
>> There are way too many variables, making this hypothetical Q&A just so
>> many unwanted bits in the ether. We don't have an actual question/situation,
>> so this speculation of what we would do is ... speculation.
>
> Calm down, deep breaths everyone.
>
> An incoming project I'm mentoring has - and the custodians and authors
> and IP holders are conveying - certain applicable patents.
>
> Untested patents, yes. I believe they should be described throughout
> any ASF vehicles as "patent claims", not purely patents. Could be
> broken. Might never be broken. All that aside...
>
> In any case, patents No. X, Y, Z and Q are being passed on through
> the AL 2.0 language, and my question is how to reassure anyone who
> is reviewing the provenance of the code in question that, yes, these
> specific patents are known of and were conveyed to the licensee?
This is exactly why we have counsel available to VP of Legal Affairs.
- Sam Ruby
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Re: Proposal: Disclosure of patents by Apache projects
Posted by William A Rowe Jr <wr...@rowe-clan.net>.
On Tue, Jun 2, 2015 at 9:03 PM, Greg Stein <gs...@gmail.com> wrote:
> On Tue, Jun 2, 2015 at 5:51 PM, Lawrence Rosen <lr...@rosenlaw.com>
> wrote:
> >...
>
>> When an Apache project purposely infringes an actual patent that we have
>> a FOSS license to, it would be polite to say something like:
>>
>
> Pure hypothetical. We don't, so this "solution" is premature. We don't
> know the characteristics of any patents in our products, nor we do know
> what the holders/owners want to do about it.
>
> There are way too many variables, making this hypothetical Q&A just so
> many unwanted bits in the ether. We don't have an actual
> question/situation, so this speculation of what we would do is ...
> speculation.
>
Calm down, deep breaths everyone.
An incoming project I'm mentoring has - and the custodians and authors
and IP holders are conveying - certain applicable patents.
Untested patents, yes. I believe they should be described throughout
any ASF vehicles as "patent claims", not purely patents. Could be
broken. Might never be broken. All that aside...
In any case, patents No. X, Y, Z and Q are being passed on through
the AL 2.0 language, and my question is how to reassure anyone who
is reviewing the provenance of the code in question that, yes, these
specific patents are known of and were conveyed to the licensee?
Re: Proposal: Disclosure of patents by Apache projects
Posted by Greg Stein <gs...@gmail.com>.
On Tue, Jun 2, 2015 at 5:51 PM, Lawrence Rosen <lr...@rosenlaw.com> wrote:
>...
> When an Apache project purposely infringes an actual patent that we have a
> FOSS license to, it would be polite to say something like:
>
Pure hypothetical. We don't, so this "solution" is premature. We don't know
the characteristics of any patents in our products, nor we do know what the
holders/owners want to do about it.
There are way too many variables, making this hypothetical Q&A just so many
unwanted bits in the ether. We don't have an actual question/situation, so
this speculation of what we would do is ... speculation.
And we continue to avoid "policy" for untested hypotheticals.
-g
RE: Proposal: Disclosure of patents by Apache projects
Posted by Lawrence Rosen <lr...@rosenlaw.com>.
William Rowe asked:
> So let me ask what might be a blindingly obvious question.
> A handful of awarded patents apply to a code base submitted
> to the ASF, licensed under the AL by the patent holder, patent
> rights are conveyed.
>
> Do we note the specific patent numbers/titles? If so, where?
> README? NOTICE? PATENTS?
If I owned those patents or if I had a license to contribute them for an Apache aggregation, I would want to list them in the NOTICE file. Here is how. It isn't onerous.
When an Apache project purposely infringes an actual patent that we have a FOSS license to, it would be polite to say something like:
Patent 1,234,567.
35 U.S.C 287(a):
Patentees, and persons making, offering for sale, or selling within the United States any patented article for or under them, or importing any patented article into the United States, may give notice to the public that the same is patented, either by fixing thereon the word “patent” or the abbreviation “pat.”, together with the number of the patent, or by fixing thereon the word “patent” or the abbreviation “pat.” together with an address of a posting on the Internet, accessible to the public without charge for accessing the address, that associates the patented article with the number of the patent, or when, from the character of the article, this can not be done, by fixing to it, or to the package wherein one or more of them is contained, a label containing a like notice. In the event of failure so to mark, no damages shall be recovered by the patentee in any action for infringement, except on proof that the infringer was notified of the infringement and continued to infringe thereafter, in which event damages may be recovered only for infringement occurring after such notice. Filing of an action for infringement shall constitute such notice.
As you described the facts, certain patent claims are licensed to Apache under a FOSS license. The effect of this §287 notice would be of concern primarily to someone creating a derivative work of an ALv2 aggregate that infringed different patent claims, or who wanted to create entirely his own version of that software from scratch. Then take notice.
More information about this patent in the NOTICE file would probably also be helpful. It is only a non-warranted ALv2 opinion so call if a "BS patent" or "theory of relativity" if you want.
/Larry
Lawrence Rosen
"If this were legal advice it would have been accompanied by a bill."
From: William A Rowe Jr [mailto:wrowe@rowe-clan.net]
Sent: Tuesday, June 2, 2015 2:44 PM
To: legal-discuss@apache.org
Subject: Re: Proposal: Disclosure of patents by Apache projects
On Tue, Jun 2, 2015 at 12:42 PM, Roy T. Fielding <fielding@gbiv.com <ma...@gbiv.com> > wrote:
On May 31, 2015, at 3:20 PM, Lawrence Rosen <lrosen@rosenlaw.com <ma...@rosenlaw.com> > wrote:
[Responses to three board members in one email. :-) ]
Greg Stein wrote:
> Thus, to water out random claims of infringement from random developers, we must wait until the patent holder *informs* us that we (likely) infringe. Until the patent holder wants to assert that, then I don't think we're qualified to make *any* judgement, including whether it is important/relevant to provide notice.
Nobody is concerned about "random claims of infringement from random developers." Or rather, "if you are concerned about such a claim, then say so in the NOTICE file. If not, move it to the trash." Nothing more is required from ASF or its members and contributors. I would ask only for open disclosure within Apache projects of patents that seem interesting to the project PMC itself.
There is no risk to ASF from such disclosure. Under ALv2, disclosures of potentially relevant patents come with no warranties from ASF.
ALv2 covers our software products, not our disclosures. We are just as liable for our statements as any human being, and any statement we might make is evidentiary for both us and our downstream recipients.
So let me ask what might be a blindingly obvious question. A handful of awarded patents apply to a code base submitted to the ASF, licensed under the AL by the patent holder, patent rights are conveyed.
Do we note the specific patent numbers/titles? If so, where? README? NOTICE? PATENTS?
RE: Proposal: Disclosure of patents by Apache projects
Posted by Lawrence Rosen <lr...@rosenlaw.com>.
Ralph Goers suggested the following NOTICE:
"This distribution contains software. Software consists of mathematical
statements and expression of business processes and as such is not subject
to patents."
LOL. The next time that question comes up at the U.S. Supreme Court, I'll
list you as an expert witness on that point. :-)
Fortunately I'm not Apache's attorney to defend you.
/Larry
From: Ralph Goers [mailto:ralph.goers@dslextreme.com]
Sent: Tuesday, June 2, 2015 2:54 PM
To: Legal Discuss
Subject: Re: Proposal: Disclosure of patents by Apache projects
On Jun 2, 2015, at 2:44 PM, William A Rowe Jr <wrowe@rowe-clan.net
<ma...@rowe-clan.net> > wrote:
On Tue, Jun 2, 2015 at 12:42 PM, Roy T. Fielding <fielding@gbiv.com
<ma...@gbiv.com> > wrote:
On May 31, 2015, at 3:20 PM, Lawrence Rosen <lrosen@rosenlaw.com
<ma...@rosenlaw.com> > wrote:
[Responses to three board members in one email. :-) ]
Greg Stein wrote:
> Thus, to water out random claims of infringement from random developers,
we must wait until the patent holder *informs* us that we (likely) infringe.
Until the patent holder wants to assert that, then I don't think we're
qualified to make *any* judgement, including whether it is
important/relevant to provide notice.
Nobody is concerned about "random claims of infringement from random
developers." Or rather, "if you are concerned about such a claim, then say
so in the NOTICE file. If not, move it to the trash." Nothing more is
required from ASF or its members and contributors. I would ask only for open
disclosure within Apache projects of patents that seem interesting to the
project PMC itself.
There is no risk to ASF from such disclosure. Under ALv2, disclosures of
potentially relevant patents come with no warranties from ASF.
ALv2 covers our software products, not our disclosures. We are just as
liable for our statements as any human being, and any statement we might
make is evidentiary for both us and our downstream recipients.
So let me ask what might be a blindingly obvious question. A handful of
awarded patents apply to a code base submitted to the ASF, licensed under
the AL by the patent holder, patent rights are conveyed.
Do we note the specific patent numbers/titles? If so, where? README?
NOTICE? PATENTS?
My answer would be to have a PATENTS file that contains something similar to
the following text:
This distribution contains software. Software consists of mathematical
statements and expression of business processes and as such is not subject
to patents.
;-)
Ralph
Re: Proposal: Disclosure of patents by Apache projects
Posted by Ralph Goers <ra...@dslextreme.com>.
> On Jun 2, 2015, at 2:44 PM, William A Rowe Jr <wr...@rowe-clan.net> wrote:
>
> On Tue, Jun 2, 2015 at 12:42 PM, Roy T. Fielding <fielding@gbiv.com <ma...@gbiv.com>> wrote:
>> On May 31, 2015, at 3:20 PM, Lawrence Rosen <lrosen@rosenlaw.com <ma...@rosenlaw.com>> wrote:
>>
>> [Responses to three board members in one email. :-) ]
>>
>> Greg Stein wrote:
>> > Thus, to water out random claims of infringement from random developers, we must wait until the patent holder *informs* us that we (likely) infringe. Until the patent holder wants to assert that, then I don't think we're qualified to make *any* judgement, including whether it is important/relevant to provide notice.
>>
>> Nobody is concerned about "random claims of infringement from random developers." Or rather, "if you are concerned about such a claim, then say so in the NOTICE file. If not, move it to the trash." Nothing more is required from ASF or its members and contributors. I would ask only for open disclosure within Apache projects of patents that seem interesting to the project PMC itself.
>>
>> There is no risk to ASF from such disclosure. Under ALv2, disclosures of potentially relevant patents come with no warranties from ASF.
>
> ALv2 covers our software products, not our disclosures. We are just as liable for our statements as any human being, and any statement we might make is evidentiary for both us and our downstream recipients.
>
> So let me ask what might be a blindingly obvious question. A handful of awarded patents apply to a code base submitted to the ASF, licensed under the AL by the patent holder, patent rights are conveyed.
>
> Do we note the specific patent numbers/titles? If so, where? README? NOTICE? PATENTS?
My answer would be to have a PATENTS file that contains something similar to the following text:
This distribution contains software. Software consists of mathematical statements and expression of business processes and as such is not subject to patents.
;-)
Ralph
Re: Proposal: Disclosure of patents by Apache projects
Posted by William A Rowe Jr <wr...@rowe-clan.net>.
On Tue, Jun 2, 2015 at 12:42 PM, Roy T. Fielding <fi...@gbiv.com> wrote:
> On May 31, 2015, at 3:20 PM, Lawrence Rosen <lr...@rosenlaw.com> wrote:
>
> [Responses to three board members in one email. :-) ]
>
> Greg Stein wrote:
> > Thus, to water out random claims of infringement from random
> developers, we must wait until the patent holder *informs* us that we
> (likely) infringe. Until the patent holder wants to assert that, then I
> don't think we're qualified to make *any* judgement, including whether it
> is important/relevant to provide notice.
>
> Nobody is concerned about "random claims of infringement from random
> developers." Or rather, "if you are concerned about such a claim, then say
> so in the NOTICE file. If not, move it to the trash." Nothing more is
> required from ASF or its members and contributors. I would ask only for
> open disclosure within Apache projects of patents that seem interesting to
> the project PMC itself.
>
> There is no risk to ASF from such disclosure. Under ALv2, disclosures of
> potentially relevant patents come with no warranties from ASF.
>
>
> ALv2 covers our software products, not our disclosures. We are just as
> liable for our statements as any human being, and any statement we might
> make is evidentiary for both us and our downstream recipients.
>
So let me ask what might be a blindingly obvious question. A handful of
awarded patents apply to a code base submitted to the ASF, licensed under
the AL by the patent holder, patent rights are conveyed.
Do we note the specific patent numbers/titles? If so, where? README?
NOTICE? PATENTS?
Re: Proposal: Disclosure of patents by Apache projects
Posted by "Roy T. Fielding" <fi...@gbiv.com>.
> On May 31, 2015, at 3:20 PM, Lawrence Rosen <lr...@rosenlaw.com> wrote:
>
> [Responses to three board members in one email. :-) ]
>
> Greg Stein wrote:
> > Thus, to water out random claims of infringement from random developers, we must wait until the patent holder *informs* us that we (likely) infringe. Until the patent holder wants to assert that, then I don't think we're qualified to make *any* judgement, including whether it is important/relevant to provide notice.
>
> Nobody is concerned about "random claims of infringement from random developers." Or rather, "if you are concerned about such a claim, then say so in the NOTICE file. If not, move it to the trash." Nothing more is required from ASF or its members and contributors. I would ask only for open disclosure within Apache projects of patents that seem interesting to the project PMC itself.
>
> There is no risk to ASF from such disclosure. Under ALv2, disclosures of potentially relevant patents come with no warranties from ASF.
ALv2 covers our software products, not our disclosures. We are just as liable for our statements as any human being, and any statement we might make is evidentiary for both us and our downstream recipients.
> ASF offers *NO* judgements of importance or relevance about patents. None of us is qualified for that.
I don't understand why you keep saying that. Many of us are qualified when supplied with the complete patent history and definition of terms. A few are even allowed to do so by their employers (or lack thereof).
> I know that we're not stupid here. All I'm suggesting is that we document our intelligence in our NOTICE file so that our customers can verify it for themselves if they want to.
I suggest that would be stupid and non-productive, since it would only benefit and encourage trolls. In any case, doing so would never happen in the NOTICE file, which contains notices that are a binding part of our copyright license (i.e., NOTICE has nothing to do with patents, known or not).
....Roy