Apache License could be hard to rename

[ssb22]

The Apache License, which is GNU's recommended "permissive" license (due to its provisions against the legal problems caused by software patents, brought about in part by the US Patent and Trademark Office's lenience in granting trivial patents), is currently used by over 2 million projects on GitHub and potentially millions more elsewhere.

This License relies on a URL at the domain "apache.org".

Changing the "apache.org" domain could now potentially cause legal complications for millions of community projects around the world.

Therefore, I wonder if there could be a solution that does not go as far as requesting the Apache Software Foundation to rename itself completely. For example, might it be good enough if the Apache Software Foundation simply stopped using a feather in its logo, published an apology for any harm done, revised the naming of new projects to move away from "Indian"-derived names, considered renaming existing projects when they reach major version milestones, and adjusted the way it refers to Indigenous peoples on its website, but kept the name of its Foundation along with its domain and License on the grounds that changing these things would now be prohibitively awkward for communities around the globe and could even make Indigenous peoples look bad for requiring so much? In other words, to say "you shouldn't have called it Apache, but seeing as everyone is now in this mess, we will let you carry on calling it Apache but you have to be more careful with your paragraphs and logos etc". Could that work?

I am not Indigenous and I am not American, therefore I am not qualified to judge this. I'm only asking a question from a practical point of view as a normal free-software developer who uses the Apache licence for my projects. Thanks.

[Edit: fixed typo]

[arecvlohe]

I think what you are proposing is a good start. In addition to that I would propose they offer back the trademark of the Apache name in order to allow Apache nations to settle any legal disputes they are opposed to with the usage of their name.

It's always interesting to hear about how this would impact projects downstream. It's almost as if ASF has created an online community so large that to move things away from their current location would cause them much strife. I don't have as much sympathy for broken links as I do for human beings.

Changing the "apache.org" domain could now potentially cause legal complications for millions of community projects around the world.

Can you explain?

[ssb22]

Interestingly ASF's list of trademarks doesn't say "Apache" by itself is a registered trademark in the US. It says "Apache" is registered in Australia, Brazil, Japan, Norway and Switzerland (I've linked those country names to the Apache trademark registration page in each when I could find it). That means they could be making a legal mistake by using the “®” sign on their US-based website, because you're only supposed to use the “®” sign when you're publishing in the country where it's registered (i.e. they should only use it on websites based in Australia, Brazil, Japan, Norway and Switzerland, not the US). If any Apache nations need to defend their names in Australia, Brazil, Japan, Norway or Switzerland, they might need the trademark back in those countries, but in the US all that is needed is for Apache to stop saying they have a registered trademark when they don't. (Some individual product names, like "Apache Kafka", are trademarked in the US, but "Apache" by itself is not, and legally they should not keep writing “Apache®” on their US-based website.)

Another thing about trademark registration is, all registrations are supposed to limit themselves to a particular category of products. That's how Apple Computer and Apple Records could both have trademarks on "Apple", as they sell completely different products, and their registrations are supposed to say which products the trademark is limited to. (I don't know how they resolved it when Apple started selling music.) Hopefully ASF will have registered "Apache" only in the field of software, so Apache nations would need it back only if they need to defend their name in a software context, and it's not relevant to any other context. ASF's Switzerland registration seems very well defined, perhaps because there are several other "Apache" registrations in Switzerland. But in Australia, ASF seems to have registered a whole class of things (like distributing electricity) which ASF doesn't actually do—I suspect some lawyer copy-pasted a template paragraph from somewhere, and ended up claiming too much. At least that means nobody can call themselves "Apache Electric Company" in Australia.

There's also the question of unregistered trade marks. The ASF trademark listing starts by saying "the ASF considers ... to be trademarks of the ASF". If it's only the ASF (not a government) that "considers" this, then it's an unregistered trademark, and the sentence is just a warning that they might try to use the law about unregistered trademarks to go after anybody who hurts them. The law about unregistered trademarks in most countries is, they must prove that (1) they had a good name to start with, (2) the other guy who used their name gave them a bad name, and (3) that made them lose profits (this will be hard to prove for free software). Unregistered trademarks are much weaker than registered trademarks.

But there's still the problem of the "chilling effect". If some company or organization says "this is my trademark, this is my property, if you use it I will sue you", then many people will avoid it out of fear, even if in actual fact they are legally clear to use it. ASF's frightening legal statements are supposed to be directed at software companies, to frighten non-ASF software companies into not calling themselves "Apache". Perhaps they can add a sentence saying they will never try to enforce their "Apache" trademark against any Apache nation, nor will they do anything to interfere with any Apache nation's right to defend that name in any context. (Even if it's software. For example, suppose in future one of the Apache nations decides to produce a phone app to guide visitors to their land. They can use Apache in the name of their app and ASF promises not to try to fight it.) That might be a good outcome for Apache nations, if it means ASF continues to protect the "Apache" name for now (one less thing for the nations to worry about) and the nations can take it later if they need it.

As for the millions of downstream projects using the Apache license,

• if they include the full version of the license in a file called LICENSE, they should still be legally covered by it (the only instance of the word "Apache" is in the name of the license; it does not occur in the actual text),

• but if they did what ASF said to do at the bottom and just write

  You may obtain a copy of the License at http://www.apache.org/licenses/LICENSE-2.0

at the top of their source files, then, after that link breaks, those source files might technically not be allowed to be distributed at all until the original author fixes it. That could break developers' freedom to use a lot of code. If ASF did rename itself, it would probably want a grace period of years to let everything that's still being maintained catch up.

At least ASF had the foresight(?) to say you should also include the "no warranty" part below the link. Projects that took that advice should at least not have to worry about being sued over some "implied warranty" law if the link breaks. They'd just need to worry that until they update the link nobody can share their work.

On the other hand, we wouldn't want ASF to just drop apache.org to an unregistered domain—not unless we can trust ICANN not to let anybody else register it. Otherwise it will simply be taken over by some advertising business that will be very hard to deal with. ASF would have to transfer it to an agreed new owner, perhaps an alliance between the Apache nations. If they're not yet ready to take it then perhaps it's better if ASF keeps it for them until they're ready, as ASF is not nearly as bad as a "squatter" would be.

[freman]

Actually, this along with what @ssb22 is saying, this could be a real opportunity for the open tech community to do what it does best and work together to solve a problem.

While English is my first language I'm terrible at getting my thoughts out of my head in a way that is easy for others to follow so I apologize for the word salad that follows.

Perhaps something like a page or site set up to show both the history of the IRL usage of Apache and the people it affects and besides that the history the software term. I'm sure no insult, injury or disrespect was ever intended by the software world to the real world and in fact the organisation has done great things for the software and online worlds something that I might hope those affected could be proud of.