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I am looking at this from Wikipedia:

The Apache License 2.0 makes sure that the user does not have to worry about infringing any patents by using the software. The user is granted a license to any patent that covers the software. This license is terminated if the user sues anyone over patent infringement related to this software. This condition is added in order to prevent patent litigations.

I don't follow what this is saying, can one please explain in plain english? If I have a project and make it Apache License, what does this section mean for me? As a related question, why does OpenBSD think this section makes the Apache license "not free"?

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If software is licensed under the Apache license, then you can use that software under open source terms.

Part of the Apache license specifically grants you a patent license for the software. However, if you attempt to sue anyone, alleging that the software is infringing on patents that you own, the patent license you received is automatically revoked.

The part that causes this to happen is "If You institute patent litigation against any entity ... alleging that the Work constitutes direct or contributory patent infringement" then "any patent licenses granted to You under this License ... terminate"

This clause exists to discourage people from claiming the software is infringing on their own patents, but still using a patent license for the software themselves.

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  • Awesome, thanks, this helps :) Why would the license want to do this? I see its value (sort of), but why do it?
    – Lance Pollard
    Commented Jun 30, 2020 at 4:34
  • Reread my answer, i misread the clause. Ive edited my answer now to accurately reflect its meaning. You should remove the correct answer tick till u review it again
    – Shazamo Morebucks
    Commented Jun 30, 2020 at 4:35
  • "You can use that software for free..." Not necessarily. The word "free" can mean zero cost, or it can mean freedom. "Freeware" means software distributed at zero cost. "Free software" means free as in freedom to run, study, change, redistribute, and distribute modifications. The copyright owner may still charge money for software that comes with a free software license.
    – jkdev
    Commented Jul 2, 2020 at 4:46
  • I'm using the word "free" to make my answer easy to understand. If you want to be technical, the license grants two licenses (royalty-free and at no cost), the first being a copyright license to reproduce, prepare Derivative Works of, publicly display, publicly perform, sublicense, and distribute the Work and such Derivative Works in Source or Object form, and the second being a patent license to make, have made, use, offer to sell, sell, import, and otherwise transfer the Work
    – Shazamo Morebucks
    Commented Jul 5, 2020 at 5:19
  • I chose to avoid that level of detail and just use the word "free", but I welcome any edit suggestions if appropriate
    – Shazamo Morebucks
    Commented Jul 5, 2020 at 5:19
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As I understand it (and remember this is not legal advice):

  • If you use software licensed under the Apache License 2.0, you get a patent license for that software from its contributors.

  • However, if you have a patent of your own, which is allegedly infringed by the software, and you sue the software's contributors for infringing your patent, you forfeit the patent license that you received for their software.

And as for OpenBSD, here's what they have to say about the Apache License 2.0:

Apache

The original Apache license was similar to the Berkeley license, but source code published under version 2 of the Apache license is subject to additional restrictions and cannot be included into OpenBSD. In particular, if you use code under the Apache 2 license, some of your rights will terminate if you claim in court that the code violates a patent.

A license can only be considered fully permissive if it allows use by anyone for all the future without giving up any of their rights. If there are conditions that might terminate any rights in the future, or if you have to give up a right that you would otherwise have, even if exercising that right could reasonably be regarded as morally objectionable, the code is not free.

(Emphasis added.)

In short: since the Apache License 2.0 has conditions that might terminate your patent license in the future, it does not qualify as free under the OpenBSD definition of "free code."

Furthermore:

In addition, the clause about the patent license is problematic because a patent license cannot be granted under Copyright law, but only under contract law, which drags the whole license into the domain of contract law. But while Copyright law is somewhat standardized by international agreements, contract law differs wildly among jurisdictions. So what the license means in different jurisdictions may vary and is hard to predict.

(Emphasis added.)

So, OpenBSD also disapproves of the patent license clause because of its potential to lead to more ambiguity and unpredictability.

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Don't look at that ...

Look at the license itself:

  1. Grant of Patent License. Subject to the terms and conditions of this License, each Contributor hereby grants to You a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable (except as stated in this section) patent license to make, have made, use, offer to sell, sell, import, and otherwise transfer the Work, where such license applies only to those patent claims licensable by such Contributor 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. If You institute patent litigation against any entity (including a cross-claim or counterclaim in a lawsuit) alleging that the Work or a Contribution incorporated within the Work constitutes direct or contributory patent infringement, then any patent licenses granted to You under this License for that Work shall terminate as of the date such litigation is filed.

That's what it means.

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  • What does this mean? "where such license applies only to those patent claims licensable by such Contributor 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."
    – Lance Pollard
    Commented Jun 30, 2020 at 2:57
  • What does this mean? "If You institute patent litigation against any entity (including a cross-claim or counterclaim in a lawsuit) alleging that the Work or a Contribution incorporated within the Work constitutes direct or contributory patent infringement, then any patent licenses granted to You under this License for that Work shall terminate as of the date such litigation is filed."
    – Lance Pollard
    Commented Jun 30, 2020 at 2:58
  • @LancePollard what it says
    – Dale M ♦
    Commented Jun 30, 2020 at 2:59
  • I am not a legal scholar, I can't follow.
    – Lance Pollard
    Commented Jun 30, 2020 at 2:59
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    @LancePollard suppose you are using software with an Apache License. The software implements some sort of file compression scheme that is covered by a patent the authors own. The Apache License automatically grants you a license to use that compression scheme. Now suppose that while using that software you notice that it uses a caching scheme that you hold a patent on. You initiate a lawsuit against other users of the software for violating your patent. That action immediately terminates your license to use the the patented file compression scheme.
    – Charles E. Grant
    Commented Jul 2, 2020 at 18:26

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