13 months ago I wrote about the Defensive Patent License, in particular in relation to free/open source software (followup, 1993 predecessor). Today the DPL project released DPL 1.1 and announced the first licensor; see Internet Archive and EFF posts.

(The EFF post references its earlier guide to alternative patent licensing which I meant to critique, probably along lines of a partially overalpping guide to reform proposals, see patent reform, parts deficient in commons and compare with protect commons from patents. I noticed today that one of the other alternative licensing schemes, License On Transfer, seems to be getting some uptake.)

Most of what I wrote previously about the DPL concept still applies with DPL 1.1 (interesting concept, possibility of substantial good impact in long term). The new version makes one major improvement (especially in relation to FLOSS) — the exclusion of “clone” products or services from the license grant has been removed. Another small (as in a -3 words difference) improvement is that alleging patent invalidity against another DPL user no longer breaches one’s licenses (only alleging infringement does), invalidation being a defensive tactic.

DPL 1.1 also adds the requirement of explicit acceptance, which strikes me as burdensome: one must research licensed patents in order to figure out which DPL users to contact with acceptance, or regularly contact all known DPL users with acceptance of all licensed patents. I understand from the DPL 1.1 announcement telecon that formal acceptance was added because the license grant is more likely to stand up in court with such explicit acceptance, with that more likely assessment based on differences between patent and copyright, and between clubs and public licenses — and further that the “contact all known DPL users” practice will in the future be facilitated by the DPL website.

Finally, a very minor issue: DPL 1.1 reproduces the GPL’s confusing three-option version compatibility scheme (this-version-or-later, only-this-version, or any-version-if-none-specified). If one must have options, I consider less confusing this-version-or-later as default, with option to explicitly mandate only-this-version.

Congratulations and thanks to Jason Schultz, Jennifer Urban, Brewster Kahle, John Gilmore, and others for getting the DPL into production. I hope it is wildly successful; check out the DPL website and help update the Wikipedia article.

Following is a wdiff between DPL 1.0 and 1.1 in two parts (because 1.0 put definitions at the beginning, 1.1 puts them at the end) below, excluding 1.1’s preface, which has no equivalent in 1.0.

DPL 1.0-1.1 wdiff: Grant, conditions, etc.

[-2.-] {+1.+} License Grant Subject to the conditions and limitations of this [-License and upon-] [-affirmative assent to the commitments specified in Section 1.7 from an-] [-individual DPL User,-] {+License,+} Licensor hereby grants and agrees to grant to [-such-] {+any+} DPL User {+(as defined in Section 7.6) who+} {+follows the procedures for License Acceptance (as defined in Section 1.1)+} a worldwide, royalty-free, no-charge, non-exclusive, irrevocable (except as stated in Sections [-3(e)-] {+2(e)+} and [-3(f))-] {+2(f))+} license, perpetual for the term of the relevant Licensed Patents, to make, have made, use, sell, offer for sale, import, and distribute Licensed Products and Services that would otherwise infringe any claim of Licensed Patents. A Licensee’s sale of Licensed Products and Services pursuant to this agreement exhausts the Licensor’s ability to assert infringement [-by-] {+against+} a downstream purchaser or user of the Licensed Products or Services. [-2.1-] {+Licensor’s+} {+obligation to grant Licenses under this provision ceases upon the arrival+} {+of any applicable Discontinuation Date, unless that Date is followed by+} {+a subsequent Offering Announcement.+} {++} {+1.1+} License Acceptance In order to accept this License, Licensee must {+qualify as a DPL User+} {+(as defined in Section 7.6) and must+} contact Licensor via the [-contact-] information provided in [-Section 1.16 and-] {+Licensor’s Offering Announcement to+} state affirmatively that Licensee accepts the terms of this License. Licensee must also {+communicate+} {+the URL of its own Offering Announcement (as defined in Section 7.13) and+} specify whether it is accepting the License to all Licensor’s Patents or only a subset of those Patents. If Licensee is only accepting the License to a subset of Licensor’s Patents, Licensee must specify each individual {+Patent’s country of issuance and corresponding+} patent [-by patent number.-] [--] [-3.-] {+number for which+} {+it is accepting a License. There is no requirement that the Licensor+} {+respond to the Licensee’s affirmative acceptance of this License.+} {++} {+2.+} License Restrictions Notwithstanding the foregoing, this License is expressly subject to and limited by the following restrictions: (a) No Sublicensing. This License does not include the right to sublicense any Licensed Patent of any Licensor. (b) License Extends Solely to Licensed Patents in Connection with Licensed Products and Services. For clarity, this License does not purport to grant any rights in any Licensor’s copyright, trademark, trade dress, design, trade secret, other intellectual property, or any other rights of Licensor other than the rights to Licensed Patents granted in Section 2, nor does the License cover products or services other than the Licensed Products and Services. {+For example, this License would not apply to+} {+any conduct of a Licensee that occurred prior to accepting this License+} {+under Section 1.1.+} (c) Scope. This License does not include Patents with a priority date or Effective Filing Date later than Licensor’s last Discontinuation Date that has not been followed by a subsequent Offering Announcement by Licensor. (d) Future DPL Users. This License does not extend to any DPL User whose Offering Announcement occurs later than Licensor’s last Discontinuation Date that has not been followed by a subsequent Offering Announcement by Licensor. (e) Revocation and Termination Rights. Licensor reserves the right to revoke and/or terminate this License with respect to a particular Licensee [-if:-] {+if, after the date of the Licensee’s most recent Offering Announcement:+} {++} {+i.+} Licensee makes any Infringement Claim, not including Defensive Patent Claims, against a DPL User; or {+ii.+} Licensee {+assigns, transfers, or+} grants an exclusive [-license,-] [- with the right to sue, or assigns or transfers-] {+license for+} a Patent to an entity or individual other than a DPL User without conditioning the [-transfer-] {+assignment, transfer, or exclusive license+} on the [-transferee-] {+recipient+} continuing to abide by the terms of this [-License.-] {+License, including but+} {+not limited to the revocation and termination rights under this Section.+} (f) Optional Conversion to FRAND Upon Discontinuation. [-As-] {+Notwithstanding+} {+any other provision in this License, as+} of any particular Licensee’s Discontinuation Date, Licensor has the right to convert the License of that particular Licensee from one that is royalty-free and no-charge to one that is subject to Fair, Reasonable, And Non-Discriminatory (FRAND) [-terms.-] [--] [-4.-] {+terms going forward. No other terms in the license may be altered in+} {+any way under this provision.+} {++} {+3.+} Versions of the License [-4.1-] {+(a)+} New Versions The DPL [-Foundation is-] {+Foundation, Jason M. Schultz of New York University, and Jennifer+} {+M. Urban of the University of California at Berkeley are+} the license [-steward. No-] {+stewards. Unless otherwise designated by one of the license stewards,+} {+no+} one other than the license [-steward-] {+stewards+} has the right to modify or publish new versions of this License. Each version will be given a distinguishing version number. [-4.2-] {+(b)+} Effect of New {+or Revised+} Versions [-Licensed Products and Services-] {+Any one of the license stewards+} may {+publish revised and/or new versions+} {+of the DPL from time to time. Such new versions will+} be [-used, made, sold, offered for sale,-] [-imported, or distributed under-] {+similar in spirit+} {+to+} the [-terms-] {+present version, but may differ in detail to address new problems+} {+or concerns.+} {++} {+Each version is given a distinguishing version number. If Licensor+} {+specifies in her Offering Announcement that she is offering a certain+} {+numbered version+} of the [-version-] {+DPL “or any later version”, Licensee+} {+has the option+} of {+following+} the [-License-] [-originally accepted pursuant to Section 2.1,-] {+terms and conditions either of that+} {+numbered version+} or [-under-] {+of any later version published by one of+} the [-terms-] {+license+} {+stewards. If Licensor does not specify a version number+} of {+the DPL in+} {+her Offering Announcement, Licensee may choose+} any [-subsequent-] version {+ever+} published by {+any of+} the license [-steward.-] [--] [-5.-] {+stewards.+} {++} {+4.+} Disclaimer of Claims Related to Patent Validity and [-Noninfringement.-] {+Noninfringement+} Licensor makes no representations and disclaims any and all warranties as to the validity of the Licensed Patents or [-that-] {+the+} products or processes covered by Licensed Patents do not infringe the patent, copyright, trademark, trade secret, or other intellectual property rights of any other party. [-6.-] {+5.+} Disclaimer of [-Warranties.-] {+Warranties+} UNLESS OTHERWISE MUTUALLY AGREED TO BY THE PARTIES IN WRITING, LICENSOR OFFERS THE PATENT LICENSE GRANTED HEREIN “AS IS” AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE LICENSED PATENTS OR ANY PRODUCT EMBODYING ANY LICENSED PATENT, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, [-MERCHANTIBILITY,-] {+MERCHANTABILITY,+} FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THE PRESENCE OR ABSENCE OF ERRORS, REGARDLESS OF THEIR DISCOVERABILITY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, IN WHICH CASE SUCH EXCLUSION MAY NOT APPLY TO LICENSEE. [-7.-] {+6.+} Limitation of [-Liability.-] {+Liability+} LICENSOR SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS LICENSE, INCLUDING INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, WHETHER ON WARRANTY, CONTRACT, NEGLIGENCE, OR OTHERWISE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES PRIOR TO SUCH AN OCCURRENCE.

DPL 1.0-1.1 wdiff: Definitions