A modified Apache like license

mentioned in issue #59 (closed)

The upstream created a modified version of the Apache License 2.0 adding this provision:

If the Derivative Work includes substantial changes to features
or functionality of the Work, then you must remove the name of
the Work, and any derivation thereof, from all copies that you
distribute, whether in Source or Object form, except as required
in copyright, patent, trademark, and attribution notices.

And the upstream *calls this "Modified Apache 2.0 License".

They retained this provision of the original Apache License 2.0:

Trademarks. This License does not grant permission to use the trade
names, trademarks, service marks, or product names of the Licensor,
except as required for reasonable and customary use in describing the
origin of the Work and reproducing the content of the NOTICE file.

The Apache Software Foundation says:

You may re-use our license unchanged, and also modify it.

If you modify it, you are on your own from a legal point of view, 
and the result is NOT the Apache License, just a new license inspired by ours.

This means that the terms 'Apache License', 'Apache', and any similar 
references to the ASF cannot appear in your modified license, other than 
to state that it differs from the original.

Also, you cannot use 'Apache' in the name of the modified license. 
Names like "Apache License with such-and-such clause", for example, are 
not acceptable, as they cause confusion.

So the issues raised by this license are:

Is the added provision acceptable in a FOSS license?
Even if it's acceptable, is there some practical reason why Fedora couldn't comply with it?
Is there a conflict between the two trademark provisions making it too difficult to interpret the license?
Even if the license is otherwise OK, is it a problem that the name of the license uses "Apache License" given the policy/preferences expressed by the ASF regarding modified versions of the Apache License?

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I'm inclined to say this license should be not-allowed for some of the above reasons.

Even if there were no other problems with the license, Fedora should probably respect the wishes of the ASF regarding confusingly-named derivative licenses -- even though I am skeptical that trademarks apply in some meaningful way to names of licenses found in community source code repositories. It should be noted that while a number of FOSS licenses have some trademark prohibition relating to naming of derivative licenses (and the Apache License itself doesn't in the license text), this is a case where the derivative license name is using the main trademark of the ASF.
Even if the upstream renamed the license, the added provision seems to go a bit too far. FOSS licensors can validly use trademark rights to limit the use of confusingly-similar names of derivative works. This license however seems to use copyright (and contract) to do so, since it's part of the software license. It might be interpreted as prohibiting some nominative uses of the original project name. For example, can I no longer truthfully say "My project is a substantial rewrite of wrk"? That is not "required in copyright, patent, trademark, and attribution notices". This is where the conflict with the original Apache License trademark provision comes into play, because that seems to indicate I can make some "reasonable and customary use in describing the origin of the Work" and that would probably by itself affirm my ability to say "My project is a substantial rewrite of wrk".
It's possible that a similar-intended statement external to the software license would be OK. Example of a separate trademark-related statement that has long been considered OK https://openjdk.org/legal/openjdk-trademark-notice.html . It is also possible that a differently worded provision would be acceptable in the software license itself.

Basically, the upstream here is trying to enforce what's generally a valid policy against confusing naming of derivative works, but doing so in a way that is problematic for multiple reasons.

I agree with your analysis @rfontanaref

Given there hasn't been a response to this issue https://github.com/wg/wrk/issues/483 so far, it also doesn't seem promising that the project will rectify the license (if that's possible to do so)

We've discussed this and there's consensus that this license should be not-allowed.

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!72 (merged)

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closed

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A modified Apache like license

License name

Text of license

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Is this license on the SPDX License List?

Reason for license review

Designs

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