On Sun, Jun 20, 2021 at 10:54 PM Bradley M. Kuhn <bkuhn@ebb.org> wrote:
> In short, your response gives a lot of useful and interesting FOSS history,
> but I feel like on balance your response makes the case that this retaliation
> clause isn't worth keeping. What's your case *for* keeping it, if any?
I don't really have a strong case. The strongest case seems to be the
cargo cult.
Let me make a slightly stronger argument for the MPL 2.0 approach, which (in copyleft-next language) triggers when there is litigation against the Covered Work rather than My Work. This was a deliberate choice to protect an entire community of collaborators, not just the bigger players who are most likely to be involved in gameable/intense patent litigation.
Whether that makes a large practical difference is unclear, but two data points:
(1) I'm aware of one substantial patent owner and litigator who has declared they will not accept MPL 2 because they want to reserve the right to litigate broadly. They asked Mozilla to narrow the language pre-release; Mozilla declined.
(2) I'm aware of a (fairly substantial) litigation which might not have been brought had the MPL 2-style broader defensive clause been in place, because the much broader termination (including copyrights, and from all contributors) would have changed the cost-benefit analysis.
I'm not sure that's a hugely persuasive argument overall, so perhaps cutting it from copyleft-next is reasonable, but IMNSHO MPL-2-style is at least much more defensible than (say) the Apache License language.
Luis