[llvm-dev] RFC #2: Improving license & patent issues in the LLVM community

[Daniel Berlin via llvm-dev]

On Thu, Nov 3, 2016 at 8:03 AM, David Chisnall <David.Chisnall at cl.cam.ac.uk>
wrote:

> On 3 Nov 2016, at 14:50, Daniel Berlin <dberlin at dberlin.org> wrote:
> >> In particular, various corporate lawyers were worried about this
> scenario that neuters defensive patents):
> >  Lawyers see risk everywhere, so i'll just go with "various corporate
> lawyers are concerned about everything, ever".
> > Clearly, for the majority, the prediction that those concerns would not
> outweigh the desire to use the software came true.
>
> Without a CLA, I don’t see anything in the Apache 2 license that prevents
> this scenario.


Again, the scope and coverage of the CLA grant is essentially identical to
the license.


> If I want to use an Apple or Google patent, is it enough for me to commit
> some code that infringes it to LLVM and watch them lose their license to
> distribute LLVM if they try to sue me?

No.

First, neither the CLA nor the license terminate all rights, only patent
rights. So the only thing that could happen is *someone else could sue them
for patent infringement*.
So no matter what, they will not have "lost their license to distribute
LLVM".  It just may be risky to do so :)



>   If not, what prevents this?
>

Because the patent grant is based on the state of the software as of the
time of your contribution.
It's even covered in the Apache license FAQ:
"Q1: If I own a patent and contribute to a Work, and, at the time my
contribution is included in that Work, none of my patent's claims are
subject to Apache's Grant of Patent License, is there a way any of those
claims would later become subject to the Grant of Patent License solely due
to subsequent contributions by other parties who are not licensees of that
patent.
A1:No."
So if i make contribution  that does *not* cover patent A (a patent i own)
You add stuff later that would cause users to infringe patent A.
I never contribute again.
That does not grant anyone rights from me to patent A.


The reason this is what occurs is pretty simple.
The wording on which claims are granted is  "That are necessarily infringed
by their Contribution(s) alone or by combination of their Contribution(s)
with the Work to which such Contribution(s) was submitted."

Clearly, the first part does not apply, because I did not contribute it.
The "work" to which such contributions was submitted is the copyrightable
work of authorship.
That's LLVM, as of the date you contributed it.
Later contributions are not part of the "work" to which you submitted your
contribution, and thus, clearly not covered by the grant.




> >> I’m also not completely convinced that the exemption to 4.d actually
> does what we’d need with respect to libc++.  In FreeBSD, we compile most
> packages with clang, but a few with gcc (and all with gcc on a couple of
> architectures).  We use libc++ for all C++ code, irrespective of how it was
> compiled.  When we are not compiling with clang[1], we’d still be covered
> by 4.d and so every package that uses C++ (a few thousand) would need to
> include the attribution.  Updating all of this and ensuring compliance
> would probably block us from updating libc++ for about a year after the
> license switch.  At the very least, I think this exemption needs a lot more
> explicit clarification.
> >
> > FWIW, the consensus on the open source legal counsel mailing lists i
> belong to, when they saw it (IE on the public mailing lists), was basically
> that it looked great and others want to use it.
> >
> > Not a single person (and the list includes many zealous people of all
> kinds) mentioned they believed there were any serious issues achieving it's
> goals, or that it needed further clarifications.
>
> For clarification: Is my interpretation incorrect?  If I compile code with
> GCC, which uses templates from libc++ headers and therefore results in
> libc++ code being inserted into the resulting binary, am I required to
> abide by clause 4 of the Apache license and include the libc++ attribution?
>

Yes.
But, AFAIK, this is deliberate.  IE the view is that in this case, you
*should* be giving attribution.
So this is at least "not a bug", regardless of whether it's liked or not.
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