Chapter 1 Applications Development with Apache
1.4 Apache and Intellectual Property
All Apache projects are copyrighted by the ASF and licensed under the Apache License. At the same time, the ASF and PMC take strong measures to ensure that no third-party intellectual property is used in Apache code without legally binding, written permission to distribute it under the Apache License. Note that while Apache holds the copyright for the entirety of a project, parts of a project may remain copyrighted by individual contributors and be licensed under ASF terms.
1.4.1 The Apache License
The Apache License (found in Appendix A) is a free software license, in the tradi- tion of the older BSD and MIT software licenses, but with an important additional clause appropriate to our times. It satisfies all accepted definitions of free and open- source software.
Given that the language of free software may be confusing to some readers, let’s pause to clarify some important points. Please note that this is just basic back- ground information, and is certainly not legal advice for users in any particular country.
Free Speech, Not Free Beer
Free beer is nice. Free speech is important!
When we talk of software freedom, we are using the word in the sense of free speech. The key freedom in software is the freedom for every user to do whatever it takes to meet his or her own needs (or, of course, to hire someone to do that). Making the source code available is a necessary part of freedom.
Cost is not relevant to software freedom. Apache is available at a wide range of costs, from a no-cost download, to a package bundled in, for example, a commer- cial Linux distribution, to a fully paid product backed by a commercial support organization.
Not Public Domain
Like most other free software, Apache is notin the public domain. It is copyrighted by the ASF and subject to a license. The difference between this status and “tradi- tional” commercial software licenses is that the Apache License is a great deal more friendly and less restrictive.
Not Shareware, Nagware, or Adware
Shareware and its modern variants are concepts alien to free software. They are commonly (though not always) associated with low-quality, amateur products, and today they are more likely to be driven by marketing than by engineering.
Not GPL
The oldest and best-known (but also much-misrepresented) free software license is the GNU General Public License (GPL), written and owned by the Free Software Foundation (FSF). The GPL introduced a concept known as copyleft.The basic prin- ciple can be summarized as follows: “We are granting you these freedoms, and you can’t take them away from anyone else.” This policy is sometimes seen as business unfriendly, because copyleft software cannot be incorporated willy-nilly into non- free products.2The Apache License is explicitly business friendly; it is notcopyleft.
In fact, the Apache License is not even compatible with the GPL.3 That is, each
license includes provisions that are incompatible with the other license: GPL soft- ware cannot be distributed on ASF terms because copyleft is a restriction incom- patible with ASF policy. ASF-licensed software cannot be distributed on GPL terms. Here’s what the FSF has to say on the subject:
This is a free software license but it is incompatible with the GPL. The Apache Software License is incompatible with the GPL because it has a specific requirement that is not in the GPL: it has certain patent termi- nation cases that the GPL does not require. (We don’t think those patent termination cases are inherently a bad idea, but nonetheless they are incompatible with the GNU GPL.4)
Note that none of these issues is a problem for end users or for third parties such as module developers or distributors. Linux (GPL) vendors routinely include Apache in their products, and many Apache modules are GPL licensed. It’s no problem for the Linux distributors to comply with both licenses, or for the module developers
1.4 Apache and Intellectual Property 13
2. This is a much-misunderstood topic. The GPL is a great deal less restrictive than it is often portrayed in the media. For details, see http://www.fsf.org/licensing/.
3. This discussion refers to GPL version 2 (1991). Version 3 is currently in preparation, and a draft has been posted for discussion. It appears likely that it will be possible to distribute Apache software under version 3 of the GPL, but not the reverse.
to apply their own choice of license to their work. Even the famously purist and legally meticulous Debian distribution5distributes GPL modules with Apache.
Where the incompatibility in licenses may pose a problem is in the interface with GPL software. Consider its implications for MySQL,6 an SQL database package
licensed under the GPL. To comply with the GPL requirements of MySQL, the Apache/APR driver7for MySQL is also GPL licensed and, therefore, cannot be dis-
tributed within Apache by the ASF. Instead, it is available as a separate download from the author’s site or as a separate package from a third party. This is relevant to users who compile Apache themselves, but those users who install Apache from packages need never concern themselves with the details.
Patents and the Anti-Piracy Clause
The greatest danger to technology developers today comes from patents. This is par- ticularly true in the United States, where the patent system was seen for many years as an instrument of economic imperialism: Let’s grant thousands of patents to “our” companies, then enforce those patents worldwide through the World Trade Organization (WTO) treaties to gain a global competitive advantage. Consequently, the U.S. Patent Office has issued huge numbers of patents while making no attempt at effective scrutiny or quality control. Many of these patents are in the hands of peo- ple who have no interest in technology, but rather seek to extort money from legiti- mate businesses.
This is, in a very real sense, today’s piracy. In the past, rulers of a country, province, or city would assert a claim over “their” seas, charge a substantial levy on foreign shipping to pass through their territory, and license privateers to enforce their prop- erty rights and seize any unlicensed ship passing through. Similarly, today’s patent holders seek to charge levies to legitimate business, and use lawyers to enforce their property. In fact, the situation today is arguably worse than in the olden days, in that there are hugely more patents than there ever were nautical pirates, and there are no longer any safe shipping lanes.
One unusual restriction in the Apache License deals with this issue as far as possi- ble. Acceptance of the Apache License requires the licensee not to assert any patent rights it may claim against the ASF or Apache users.
14 Chapter 1 • Applications Development with Apache
5. http://www.debian.org/ 6. http://www.mysql.com/ 7. See Chapter 11 for details.
To the best of my knowledge, Apache has remained clear of intellectual property lawsuits. This contrasts with the situation faced by Linux in the SCO lawsuits (although it appears likely that Linux will be vindicated8), and more strongly with
the situation involving Microsoft, whose end users have paid substantial damages to third parties over patent infringements in Microsoft software.9,10
1.4.2 Third-Party Intellectual Property
Apache’s intellectual property is protected by copyright and the license. Of course, it is also critically important that Apache doesn’t violate anyone else’s intellectual property. That means that all significant contributions to Apache must be properly donated:
• Before a developer can become a committer, he or she must sign a Contributor License Agreement (CLA) that gives the ASF all necessary rights to use that developer’s contributions and to license them to third parties on ASF terms. The CLA also binds a contributor to ensure that contributions which are not their own original work are signed over to the ASF before including them in Apache. The full CLA appears in Appendix B.
• When a developer is not his or her own master (e.g., an employee whose employer may have rights over his or her work), a Corporate CLA signed by an authorized officer of the employer (e.g., CTO or IT Director) is also required. The full CCLA also appears in Appendix B.
• All relevant CLAs and CCLAs must be on file with the ASF before an indi- vidual can be granted commit access. These agreements serve to ensure that committers and their employers cannot prevent the ASF or Apache users mak- ing use of their contributed work.
1.4 Apache and Intellectual Property 15
8. SCO’s main lawsuits are against UNIX and Linux developer IBM and former UNIX owner Novell, not end users. One of its two suits against Linux users (Daimler-Chrysler) has already been thrown out of court; the other (Autozone) is on hold pending the outcome of the IBM and Novell cases.
9. Starting in 1999, end users have paid tens of millions of dollars to Timeline, Inc., for patent infringe- ments in Microsoft’s SQL Server. Microsoft had licensed the patents for its own internal use but the license did not to extend to users of the software, according to a final court judgment in February 2003. 10. In 2005, Microsoft PR made a very public commitment to indemnify users against intellectual property lawsuits. Nevertheless, in January 2006, lawsuits over patent infringement in Microsoft DRM were filed by Softvault against Yahoo!, Microsoft, Napster, Creative Labs, Dell, Gateway, Iriver, Samsung, Toshiba, Digital Networks, Palm, Audiovox, Sandisk, and Thomson (http://www.theinquirer.net/ ?article=28990).
Responsibility
In the first instance, it is the responsibility of each committer to ensure that his or her contributions don’t violate third-party intellectual property.
The overall responsibility lies with the PMC, which will query any contribution that raises doubts—in particular, major new contributions.
Audit
If despite all due care, problems with third-party intellectual property should arise, Apache has a full audit trail managed by Subversion. Thus, in the worst case, any problematic code can be identified and removed.