Re: APSL 1.1

Just in case you hadn't subscribed.

----- Forwarded message from Brian Behlendorf <brian(at)hyperreal(dot)org> -----

Delivered-To: license-discuss(at)crynwr(dot)com
Date: Mon, 19 Apr 1999 15:10:40 -0700 (PDT)
From: Brian Behlendorf <brian(at)hyperreal(dot)org>
To: license-discuss(at)opensource(dot)org
Subject: APSL 1.1 available for comment.
X-UIDL: 29f9f1b18c8abb5c4ad63cff68b43f79

Greetings!

Since problems were discovered in the Apple Public Source License 1.0 with
respect to OSD conformance, we've been working with Apple on revising
those sections of the APSL that were cited as problematic. This morning,
Apple released version 1.1 of the APSL. It's the opinion of the board of
directors of OSI that this answers the issues brought up before, and thus
conforms to the OSD. However, in the interests of making the
certification process more open, we elected to not grant formal
certification until the members of this list have had a chance to review
the new language in APSL 1.1.

So, folks, here's your chance. We will take comments on the license until
Thursday, April 22nd. On Friday, the board of OSI will decide, based on
the messages posted to this list, whether APSL 1.1 is OSD-conformant.

We ask that comments about the license be *restricted* to its conformance
to the *current* Open Source Definition, strictly speaking. Issues as to
whether the OSD needs to be expanded to cover something in the license is
off-topic, at least until after we've cleared out any issues with the
APSL.

The URL to the APSL 1.1 is at

http://publicsource.apple.com/apsl/

Thanks,

The OSI Board of Directors.

----- End forwarded message -----

--
__________________________________________________________________
Ean Schuessler A guy running Linux
Novare International Inc. A company running Linux
*** WARNING: This signature may contain jokes.

The URL to the APSL 1.1 is at

http://publicsource.apple.com/apsl/

Still not acceptable:

9.1 Infringement. If any portion of, or functionality implemented
by, the Original Code becomes the subject of a claim of
infringement, Apple may, at its option: (a) attempt to procure
the rights necessary for Apple and You to continue using the
Affected Original Code; (b) modify the Affected Original Code
so that it is no longer infringing; or (c) suspend Your rights
to use, reproduce, modify, sublicense and distribute the
Affected Original Code until a final determination of the claim
is made by a court or governmental administrative agency of
competent jurisdiction and Apple lifts the suspension as set
forth below. Such suspension of rights will be effective
immediately upon Apple's posting of a notice to such effect on
the Apple web site that is used for implementation of this
License. Upon such final determination being made, if Apple is
legally able, without the payment of a fee or royalty, to
resume use, reproduction, modification, sublicensing and
distribution of the Affected Original Code, Apple will lift the
suspension of rights to the Affected Original Code by posting a
notice to such effect on the Apple web site that is used for
implementation of this License. If Apple suspends Your rights
to Affected Original Code, nothing in this License shall be
construed to restrict You, at Your option and subject to
applicable law, from replacing the Affected Original Code with
non-infringing code or independently negotiating for necessary
rights from such third party.

i.e., if Jon Luser claims that he wrote the whole thing, not Apple,
Apple has the right to stop you from using it! Look, can't IBM's and
Apple's lawyers out there make some distinction between a claim that
has merit (as determined by a court of law) and a claim that gets
thrown out? There's no way we can accept them being able to take
software away at any time for claims lacking merit.

I don't think Apple needs any such clause at all. Any court that the
authority to make a copyright judgment also has the authority to stop
use of the affected code; no additional clause by Apple is needed.
These "take the law into our own hands" clauses must go!
--
"Let others praise ancient times; I am glad I was born in these."
--Ovid (43 BC-18 AD)

Ben Pfaff writes:
> The URL to the APSL 1.1 is at
> http://publicsource.apple.com/apsl/

> Still not acceptable:
> [revocation clause]

I agree. This is improved, but it still allows revocation on the basis of
a mere allegation of infringement. I could send a letter to Apple claiming
that the Original Code infringes the copyright on the term paper I wrote
for Anthro 101 in 1967 and it would be grounds for a suspension. It also
still requires that every user continuously monitor a Web page.

...until a final determination of the claim is made by a court or
governmental administrative agency of competent jurisdiction...

This could take literally forever, since nothing compels either the
claimant or Apple to take the matter to court. Also note that if the
claimant does go to court and Apple fails present any defense the claimant
may win a default judgement regardless of the merits of his case. This
could easily happen if Apple decides that free software is not worth
spending money on.

I find it hard to understand why Apple believes that it could have any
liability for my use of gratis software that I pulled off a Web site. A
notice clause should be more than sufficient:

9.1 Infringement. If any portion of, or functionality implemented by,
the Original Code becomes the subject of a claim of infringement,
Apple may at its option post a notice of the claim on the Apple web
site that is used for implementation of this License. The notice
will remain until a final determination of the claim is made by a
court or governmental administrative agency of competent
jurisdiction or the claim is otherwise resolved, at which time it
will be replaced by the result of said determination or resolution.
You agree that the posting of such a notice constitutes notice to
You of the of the claim, and that You assume full responsibility and
liability for any claims against You or against Apple that arise
from Your continued use, reproduction, modification, or distribution
of the Affected Original Code after the posting of such a notice.

Or better:

9.1 Infringement. Apple does not warrant that Your use, reproduction,
modification, or distribution of the Original Code does not infringe
any patents or copyrights. You agree to assume full responsibility
and liability for any claims may that arise from Your use,
reproduction, modification, or distribution of the Original Code.
--
John Hasler This posting is in the public domain.
john(at)dhh(dot)gt(dot)org Do with it what you will.
Dancing Horse Hill Make money from it if you can; I don't mind.
Elmwood, Wisconsin

According to John Hasler:
> This is improved, but it still allows revocation on the basis of a
> mere allegation of infringement. I could send a letter to Apple
> claiming that the Original Code infringes the copyright on the term
> paper I wrote for Anthro 101 in 1967 and it would be grounds for a
> suspension. It also still requires that every user continuously
> monitor a Web page.

Given the way patent law works, could it not be argued that the lack
of a similar phrase in the GPL is actually a defect in the GPL? If
Apple doesn't have *some* way to discontinue (alleged) infringement,
it can't protect itself against aggressive deep-pockets attacks.

Note also that the license is only *suspended*, and the APSL takes
explicit notice of your right to carry on as *you* see fit, even if
Apple takes a cautious path on a given disagreement.

> I find it hard to understand why Apple believes that it could have any
> liability for my use of gratis software that I pulled off a Web site.

Are you a lawyer?

I trust that Apple's lawyers aren't shadowboxing. They know how
unpopular the termination clause was, but they apparently felt that
they couldn't just remove it. And they showed they were willing to
remove unpopular clauses when possible: the export clause is gone.
--
Chip Salzenberg - a.k.a. - <chip(at)perlsupport(dot)com>
"When do you work?" "Whenever I'm not busy."

According to Ben Pfaff:
> Maybe you think that the last clause in that paragraph, ``If Apple
> suspends Your rights... nothing in this License shall be construed to
> restrict You... from replacing the Affected Original Code...'', means
> that you have some additional rights.

No, I don't think that. But it clarifies Apple's intent not to get in
your way if you make independent arrangements (the part you didn't
quote). This is better than simply saying nothing.

> [0] There is no distinction between bogus claims and
> reasonable claims.
> [2] There is no guarantee that a court will ever be involved
> or that it will make a judgment.
> [3] There is no guarantee that Apple will ever lift the
> suspension.

This pretty much matches the real world. Again, all Apple is doing
here is spelling out what would otherwise have to be fought over, at
great expense of time, money, and PR.

If you don't like it, take it up with Congress and the USPTO. I'm
entirely serious in this. I'm not dismissing you. I'm pointing to
the real culprits that have made this clause of the APSL *necessary*.

> > Are you a lawyer?
>
> No. Are you willing to trust lawyers? I'm not.

Mistrusting everyone who's passed a bar exam is silly. Individuals
and pseudo-individuals like corportations should be trusted in varying
degrees according to their individual characters.
--
Chip Salzenberg - a.k.a. - <chip(at)perlsupport(dot)com>
"When do you work?" "Whenever I'm not busy."

According to Ben Pfaff:
> Chip Salzenberg <chip(at)perlsupport(dot)com> writes:
> > Ben:
> > > [0] There is no distinction between bogus claims and
> > > reasonable claims.
> > > [2] There is no guarantee that a court will ever be involved
> > > or that it will make a judgment.
> > > [3] There is no guarantee that Apple will ever lift the
> > > suspension.
> >
> > This pretty much matches the real world. Again, all Apple is doing
> > here is spelling out what would otherwise have to be fought over, at
> > great expense of time, money, and PR.
>
> No. Apple is taking the law into their own hands through 9.1. They
> are saying that they are better qualified to judge claims than the
> courts. Courts should be able to say ``you can't use that code
> anymore.'' The use of courts guarantees due process; Apple is not
> giving us any such guarantee here. They can be entirely arbitrary.

This view doesn't allow for out-of-court settlements, which are often
the best way to resolve contentious issues quickly.

> > Mistrusting everyone who's passed a bar exam is silly. Individuals
> > and pseudo-individuals like corportations should be trusted in varying
> > degrees according to their individual characters.
>
> I'm willing to trust the current people in charge at Apple, to some
> extent. I'm not willing to give any trust to the people in charge
> there a year from now or 10 years from now. A license like this
> doesn't give us any protection from them.

Perhaps you should consider just how much 'protection' you have with
alternative licenses. It may be a lot less than you think.
--
Chip Salzenberg - a.k.a. - <chip(at)perlsupport(dot)com>
"When do you work?" "Whenever I'm not busy."

John Hasler <john(at)dhh(dot)gt(dot)org> writes:
> Ben Pfaff writes:

> > The URL to the APSL 1.1 is at
> > http://publicsource.apple.com/apsl/

> > Still not acceptable:
> > [revocation clause]

> I agree.

Are anyone resending these comments to the OSI mailing list mentioned?

--
Henning Makholm

According to Raul Miller:
> > > [0] There is no distinction between bogus claims and
> > > reasonable claims.
> > > [2] There is no guarantee that a court will ever be involved
> > > or that it will make a judgment.
> > > [3] There is no guarantee that Apple will ever lift the
> > > suspension.
>
> Chip Salzenberg <chip(at)perlsupport(dot)com> wrote:
> > This pretty much matches the real world. Again, all Apple is doing
> > here is spelling out what would otherwise have to be fought over, at
> > great expense of time, money, and PR.
>
> Er.. can you point us at the relevant references?
> I've not seen this in copyright law.

First, IANAL. Second, it's not a copyright question, it's a patent
'contributory infringement' question. Third, IANAL. Thank you.
--
Chip Salzenberg - a.k.a. - <chip(at)perlsupport(dot)com>
"When do you work?" "Whenever I'm not busy."

Henning Makholm writes:
> Are anyone resending these comments to the OSI mailing list mentioned?

I'm not, but feel free to forward mine.
--
John Hasler
john(at)dhh(dot)gt(dot)org (John Hasler)
Dancing Horse Hill
Elmwood, WI

Chip Salzenberg <chip(at)perlsupport(dot)com> writes:

According to John Hasler:
> This is improved, but it still allows revocation on the basis of a
> mere allegation of infringement. I could send a letter to Apple
> claiming that the Original Code infringes the copyright on the term
> paper I wrote for Anthro 101 in 1967 and it would be grounds for a
> suspension. It also still requires that every user continuously
> monitor a Web page.

[...]
Note also that the license is only *suspended*, and the APSL takes
explicit notice of your right to carry on as *you* see fit, even if
Apple takes a cautious path on a given disagreement.

No it doesn't. It says ``Apple may, at its option... suspend Your
rights to use... the Affected Original Code until a final
determination of the claim is made by a court... and Apple lifts the
suspension.''

Maybe you think that the last clause in that paragraph, ``If Apple
suspends Your rights... nothing in this License shall be construed to
restrict You... from replacing the Affected Original Code...'', means
that you have some additional rights.

It means *nothing*. Consider what happens if someone claims to have
rights to all of a product, whether that's true or not. Then Apple
suspends your rights and you have the ``right'' to replace the whole
thing with something else. That's absurd.

If offered something under such a license, you might as well refuse it
entirely and replace it in advance, because there's a good chance
you'll have to do so in the future anyway when a claim is made against
it.

The claims process laid out in 9.1 is as follows:

0. Someone makes a claim, bogus or not.
1. Apple suspends your rights.
2. A court makes a judgment.
3. Apple lifts the suspension.

There are *big* problems with this:

[0] There is no distinction between bogus claims and
reasonable claims.

[2] There is no guarantee that a court will ever be involved
or that it will make a judgment.

[3] There is no guarantee that Apple will ever lift the
suspension.

> I find it hard to understand why Apple believes that it could have any
> liability for my use of gratis software that I pulled off a Web site.

Are you a lawyer?

No. Are you willing to trust lawyers? I'm not.

I trust that Apple's lawyers aren't shadowboxing. They know how
unpopular the termination clause was, but they apparently felt that
they couldn't just remove it. And they showed they were willing to
remove unpopular clauses when possible: the export clause is gone.

This clause gives Apple the right to revoke all our rights at any time
for any reason. I won't use code under this license.
--
"...dans ce pays-ci il est bon de tuer de temps en temps un amiral
pour encourager les autres."
--Voltaire, _Candide_

Chip Salzenberg <chip(at)perlsupport(dot)com> writes:

According to Ben Pfaff:
> Maybe you think that the last clause in that paragraph, ``If Apple
> suspends Your rights... nothing in this License shall be construed to
> restrict You... from replacing the Affected Original Code...'', means
> that you have some additional rights.

No, I don't think that. But it clarifies Apple's intent not to get in
your way if you make independent arrangements (the part you didn't
quote). This is better than simply saying nothing.

Agreed.

> [0] There is no distinction between bogus claims and
> reasonable claims.
> [2] There is no guarantee that a court will ever be involved
> or that it will make a judgment.
> [3] There is no guarantee that Apple will ever lift the
> suspension.

This pretty much matches the real world. Again, all Apple is doing
here is spelling out what would otherwise have to be fought over, at
great expense of time, money, and PR.

No. Apple is taking the law into their own hands through 9.1. They
are saying that they are better qualified to judge claims than the
courts. Courts should be able to say ``you can't use that code
anymore.'' The use of courts guarantees due process; Apple is not
giving us any such guarantee here. They can be entirely arbitrary.

If you don't like it, take it up with Congress and the USPTO. I'm
entirely serious in this. I'm not dismissing you. I'm pointing to
the real culprits that have made this clause of the APSL *necessary*.

> > Are you a lawyer?
>
> No. Are you willing to trust lawyers? I'm not.

Mistrusting everyone who's passed a bar exam is silly. Individuals
and pseudo-individuals like corportations should be trusted in varying
degrees according to their individual characters.

I'm willing to trust the current people in charge at Apple, to some
extent. I'm not willing to give any trust to the people in charge
there a year from now or 10 years from now. A license like this
doesn't give us any protection from them.

I won't use ``free'' software that can be arbitrarily revoked by a
corporation, and I hope that no one else will, either.
--
"Let others praise ancient times; I am glad I was born in these."
--Ovid (43 BC-18 AD)

> > [0] There is no distinction between bogus claims and
> > reasonable claims.
> > [2] There is no guarantee that a court will ever be involved
> > or that it will make a judgment.
> > [3] There is no guarantee that Apple will ever lift the
> > suspension.

Chip Salzenberg <chip(at)perlsupport(dot)com> wrote:
> This pretty much matches the real world. Again, all Apple is doing
> here is spelling out what would otherwise have to be fought over, at
> great expense of time, money, and PR.

Er.. can you point us at the relevant references?

I've not seen this in copyright law.

--
Raul

Chip Salzenberg writes:
> Given the way patent law works, could it not be argued that the lack of a
> similar phrase in the GPL is actually a defect in the GPL?

No. From the GPL:

7. If, as a consequence of a court judgment or allegation of patent
infringement or for any other reason (not limited to patent issues),
conditions are imposed on you (whether by court order, agreement or
otherwise) that contradict the conditions of this License, they do not
excuse you from the conditions of this License. If you cannot distribute
so as to satisfy simultaneously your obligations under this License and
any other pertinent obligations, then as a consequence you may not
distribute the Program at all. For example, if a patent license would not
permit royalty-free redistribution of the Program by all those who receive
copies directly or indirectly through you, then the only way you could
satisfy both it and this License would be to refrain entirely from
distribution of the Program.

> If Apple doesn't have *some* way to discontinue (alleged) infringement,
> it can't protect itself against aggressive deep-pockets attacks.

Apple has a simple way to discontinue infringement: they can discontinue
use and distribution.

> Note also that the license is only *suspended*, and the APSL takes
> explicit notice of your right to carry on as *you* see fit, even if Apple
> takes a cautious path on a given disagreement.

It does no such thing.

> Are you a lawyer?

Are you? If not, what is your point?

> I trust that Apple's lawyers aren't shadowboxing.

I trust that Apple's lawyers are advancing Apple's interests.

> They know how unpopular the termination clause was, but they apparently
> felt that they couldn't just remove it.

But we have no way to know why. We must judge the license as we see it,
not on the basis of inferred benign motives on the part of Apple's
management.

> And they showed they were willing to remove unpopular clauses when
> possible: the export clause is gone.

They showed that they are willing to negotiate. Have you never been
involved in business negotiations before?
--
John Hasler
john(at)dhh(dot)gt(dot)org (John Hasler)
Dancing Horse Hill
Elmwood, WI

Ben writes:
> Are you willing to trust lawyers? I'm not.

I am. Most of the lawyers I have had dealings with have been honest,
ethical men who did their best to advance their client's interests. This
license was written by lawyers who have Apple for a client.
--
John Hasler
john(at)dhh(dot)gt(dot)org (John Hasler)
Dancing Horse Hill
Elmwood, WI

Chip Salzenberg writes:
> I'm not dismissing you. I'm pointing to the real culprits that have made
> this clause of the APSL *necessary*.

You have a legal opinion on this? Case law? Relevant statutes?

> Individuals and pseudo-individuals like corportations should be trusted
> in varying degrees according to their individual characters.

Publicly held corporations can be trusted only to obey the law and honor
their contracts. This is not because the people who manage them are
dishonest or untrustworty: it's because they are subject to replacement at
any time by people who believe that much or all of what their predecessors
did was wrong. This sort of thing happens not infrequently in the computer
industry. Consider, to pick an example entirely at random, Apple.
--
John Hasler
john(at)dhh(dot)gt(dot)org (John Hasler)
Dancing Horse Hill
Elmwood, WI

Ben writes:
> I won't use ``free'' software that can be arbitrarily revoked by a
> corporation, and I hope that no one else will, either.

I won't. I would rather see Apple drop the whole thing than publish under
this license.
--
John Hasler
john(at)dhh(dot)gt(dot)org (John Hasler)
Dancing Horse Hill
Elmwood, WI

Chip Salzenberg writes:
> This view doesn't allow for out-of-court settlements, which are often the
> best way to resolve contentious issues quickly.

"Out-of-court settlements". Yes. Interesting possibilities there. "We'll
trade you a license for our foobar algorithm that is in your foobaz package
for one for your frootle algorithm, but of course the license won't include
the APSL version of foobaz. You'll have to agree to suppress that.
Shouldn't be hard: you've got that 'infringement' clause to work with".
--
John Hasler
john(at)dhh(dot)gt(dot)org (John Hasler)
Dancing Horse Hill
Elmwood, WI

Chip Salzenberg writes:
> Perhaps you should consider just how much 'protection' you have with
> alternative licenses.

"Protection"? What is that supposed to mean? The only 'protection' I need
or want with a free software license is protection against claims of
infringement by the author.
--
John Hasler
john(at)dhh(dot)gt(dot)org (John Hasler)
Dancing Horse Hill
Elmwood, WI

According to John Hasler:
> Chip Salzenberg writes:
> > I'm not dismissing you. I'm pointing to the real culprits that have made
> > this clause of the APSL *necessary*.
>
> You have a legal opinion on this? Case law? Relevant statutes?

"Ya got me." No, I don't. But the OSI has a lawyer at our disposal,
so I'll seek one.

> > Individuals and pseudo-individuals like corportations should be trusted
> > in varying degrees according to their individual characters.
>
> Publicly held corporations can be trusted only to obey the law and honor
> their contracts.

Oh, I agree entirely. The law and most corporate charters actually
make it a crime for corporate officers to do 'the right thing' if that
'right thing' loses money, or makes less money than 'the wrong thing'
would.

> ... [New] people who believe that much or all of what their predecessors
> did was wrong. This sort of thing happens not infrequently in the computer
> industry. Consider, to pick an example entirely at random, Apple.

*youch* That one made contact.
--
Chip Salzenberg - a.k.a. - <chip(at)perlsupport(dot)com>
"When do you work?" "Whenever I'm not busy."

According to John Hasler:
> Chip Salzenberg writes:
> > Given the way patent law works, could it not be argued that the lack of a
> > similar phrase in the GPL is actually a defect in the GPL?
>
> No.

OK, point taken. The GPL is a tool of social change, and as such, it
uses patent threats as levers.

> > If Apple doesn't have *some* way to discontinue (alleged) infringement,
> > it can't protect itself against aggressive deep-pockets attacks.
>
> Apple has a simple way to discontinue infringement: they can discontinue
> use and distribution.

That may not be good enough for Apple's protection. I don't think it's
a coincidence that IBM's and Sun's lawyers have also seen a need for
termination/suspension. I think it's a deep-pockets-more-caution issue.

> > Note also that the license is only *suspended*, and the APSL takes
> > explicit notice of your right to carry on as *you* see fit, even if Apple
> > takes a cautious path on a given disagreement.
>
> It does no such thing.

I meant this:

>>> If Apple suspends Your rights to Affected Original Code,
>>> nothing in this License shall be construed to restrict You,
>>> at Your option and subject to applicable law, from [...]
>>> independently negotiating for necessary rights from such
>>> third party.

> > Are you a lawyer?
> Are you? If not, what is your point?

Just that a non-lawyer's opinion that some legal language is not
necessary carries less weight than a lawyer's opinion that it is.

> > I trust that Apple's lawyers aren't shadowboxing.
> I trust that Apple's lawyers are advancing Apple's interests.

Touche'.
--
Chip Salzenberg - a.k.a. - <chip(at)perlsupport(dot)com>
"When do you work?" "Whenever I'm not busy."

Chip Salzenberg writes:
> I meant this:

>>> If Apple suspends Your rights to Affected Original Code,
>>> nothing in this License shall be construed to restrict You,
>>> at Your option and subject to applicable law, from [...]
>>> independently negotiating for necessary rights from such
>>> third party.

And if the "third party" is a script-kiddie with a bogus claim who says he
wants $100,000 for a license?

Besides, even if I do pay him that $100,000 and get a license to use his
patent, my license to use the Apple code that implements it is still
suspended.
--
John Hasler
john(at)dhh(dot)gt(dot)org (John Hasler)
Dancing Horse Hill
Elmwood, WI

According to John Hasler:
> Besides, even if I do pay him that $100,000 and get a license to use
> his patent, my license to use the Apple code that implements it is
> still suspended.

Quite possibly.
--
Chip Salzenberg - a.k.a. - <chip(at)perlsupport(dot)com>
"When do you work?" "Whenever I'm not busy."

Chip Salzenberg <chip(at)perlsupport(dot)com> writes:

> OK, point taken. The GPL is a tool of social change, and as such, it
> uses patent threats as levers.

Wrong.

The GPL *is* a tool of social change and uses several levers (some
of which are not universally agreed on as Good Things).

"Patent threats" is not one of them.

Regarding patents GPL simply states (in its usual convoluted legalese)

a) that if there's a patent applying to the code you cannot distribute
the program without the consent of the copyright holder *and*
the patent holder.

b) that the copyright holder is always perfectly willing to give you
*his* consent (as long as you agree to certain terms not having to
do with patents) but if you need someone else's consent you'll
have to negotiate with them yourself.

Apple and IBM could do the same.

At least, to my knowledge, no *argument* why they couldn't has ever
been advanced.

All we have are the second-hand postulates of corporate lawyers (who
are protecting their clients' interests first and the interests of
their clients' customers only to the extent that happens to coincide
with the client's interests).

--
Henning Makholm