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Posted to legal-discuss@apache.org by Paul Libbrecht <pa...@activemath.org> on 2006/07/24 17:17:39 UTC
virality of IBM's CPL ?
Hello,
we discussed recently with a legal person to review our third-party
dependencies and the person interpreted that any derived work of a
CPL-licensed library should also be CPL; at it seemed, derived work
might be any linking... so that would imply any jUnit test case or
anything touching wsdl4j is under CPL... not what we expect !
Can anyone please contradict me here ?
thanks
paul
Re: virality of IBM's CPL ?
Posted by Paul Libbrecht <pa...@activemath.org>.
Justin Erenkrantz wrote:
> On 7/24/06, Paul Libbrecht <pa...@activemath.org> wrote:
>> we discussed recently with a legal person to review our third-party
>> dependencies and the person interpreted that any derived work of a
>> CPL-licensed library should also be CPL; at it seemed, derived work
>> might be any linking... so that would imply any jUnit test case or
>> anything touching wsdl4j is under CPL... not what we expect !
>>
>> Can anyone please contradict me here ?
> I don't know who you talked to - what ASF project are you working
> with? Who did you talk to?
This was on our project (ActiveMath) with a legal expert for Germany. I
understood such a conclusion would also have consequences on most Apache
java-based projects which mostly use jUnit... hence wanted to proof that
this was considered.
> Per http://people.apache.org/~cliffs/3party.html (see Category B), the
> ASF only allows CPL-licensed works to be used in binary form for our
> projects - so linking against a CPL-licensed work is fine and we don't
> consider linking to create a derivative work. -- justin
It does clarify things... much help!
thanks
paul
Re: virality of IBM's CPL ?
Posted by Justin Erenkrantz <ju...@erenkrantz.com>.
On 7/24/06, Paul Libbrecht <pa...@activemath.org> wrote:
> we discussed recently with a legal person to review our third-party
> dependencies and the person interpreted that any derived work of a
> CPL-licensed library should also be CPL; at it seemed, derived work
> might be any linking... so that would imply any jUnit test case or
> anything touching wsdl4j is under CPL... not what we expect !
>
> Can anyone please contradict me here ?
I don't know who you talked to - what ASF project are you working
with? Who did you talk to?
Per http://people.apache.org/~cliffs/3party.html (see Category B), the
ASF only allows CPL-licensed works to be used in binary form for our
projects - so linking against a CPL-licensed work is fine and we don't
consider linking to create a derivative work. -- justin
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Re: RE: virality of IBM's CPL ?
Posted by Jeffrey Thompson <jt...@us.ibm.com>.
jaaronfarr@gmail.com wrote on 07/27/2006 08:30:29 PM:
> May I add one more wrinkle to this discussion?
Certainly, though my wife suggests that I have enough wrinkles already . .
.
>
> Eclipse provides a number of "snippets" [1] as code examples. All
> examples are licensed under the EPL/CPL. Given their educational
> nature, developers are likely to use this code by either (1) direct
> copying or (2) as inspiration on how to solve a particular problem.
> Given the definitions I've read in this thread, both cases would be
> counted as derivative works. As derivative works, how would the CPL
> or MPL handle this case?
>
> For example, if the snippet were added to the 'payroll' file, then it
> would come under the CPL and, if I understand correctly, I would now
> need to move 'timecards' and 'leads' to a new module to avoid them
> also coming under the license.
>
> If we take the files specific interpretation of the MPL, then if it
> were a literal-copy only 'payroll' would be under the MPL and I could
> distribute all three as a larger work under a separate license.
> However, if it were a non-literal copy, then if Jeff is correct I may
> have no right of redistribution at all.
Actually, I'm not suggesting that you wouldn't have distribution rights.
I'm suggesting that the term Modification should be interpreted to include
the non-literal copying.
>
> In either case, it sounds like licensing examples, code intended to be
> copied, under the MPL or CPL has unintended effects.
>
Interesting example. Maybe you should contact Eclipse and see if they'll
change the license. I expect they just hadn't thought that issue thru.
Jeff
> --
> jaaron
>
> [1] http://www.eclipse.org/swt/snippets/
Staff Counsel, IBM Corporation (914)766-1757 (tie)8-826 (fax) -8160
(notes) jthom@ibmus (internet) jthom@us.ibm.com (home) jeff@beff.net
(web) http://www.beff.net/
Re: RE: virality of IBM's CPL ?
Posted by J Aaron Farr <fa...@apache.org>.
On 7/27/06, Jeffrey Thompson <jt...@us.ibm.com> wrote:
> Where are we now? Do you have to license your logfile2.0 source code
> under the MPL or EPL?
>
> What you had said/implied before was that since you didn't copy any
> literal code and since this is a separate FILE, the MPL doesn't reach that
> new code. My concern is if that's the case, then the court would conclude
> that you have no license to distribute the source or object code of
> logfile2.0. This is why I'm suggesting that the definition of
> Modification should not be so narrowly construed.
>
> Under the EPL, I believe, the situation is much clearer. The copyright
> grant is to create and distribute derivative works. Regardless of where
> the line between derivative works and non-derivative works is drawn (as
> you pointed out earlier, each jurisdiction might have its own definition),
> only derivative works require consent of the copyright holder. So, the
> copyright holder is giving you permission to create and distribute to the
> full extent that such permission is needed.
May I add one more wrinkle to this discussion?
Eclipse provides a number of "snippets" [1] as code examples. All
examples are licensed under the EPL/CPL. Given their educational
nature, developers are likely to use this code by either (1) direct
copying or (2) as inspiration on how to solve a particular problem.
Given the definitions I've read in this thread, both cases would be
counted as derivative works. As derivative works, how would the CPL
or MPL handle this case?
For example, if the snippet were added to the 'payroll' file, then it
would come under the CPL and, if I understand correctly, I would now
need to move 'timecards' and 'leads' to a new module to avoid them
also coming under the license.
If we take the files specific interpretation of the MPL, then if it
were a literal-copy only 'payroll' would be under the MPL and I could
distribute all three as a larger work under a separate license.
However, if it were a non-literal copy, then if Jeff is correct I may
have no right of redistribution at all.
In either case, it sounds like licensing examples, code intended to be
copied, under the MPL or CPL has unintended effects.
--
jaaron
[1] http://www.eclipse.org/swt/snippets/
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RE: virality of IBM's CPL ?
Posted by Jeffrey Thompson <jt...@us.ibm.com>.
"Jim Barnett" <ji...@bea.com> wrote on 07/26/2006 06:08:32 PM:
> Good points Jeff, but I not convinced that the "derivative work" status
> of a work you produce is relevant for determining whether you are
> subject to "copyleft" treatment under the CDDL/MPL. Also, it may be me
> that's "missing something" with respect to the CPL/EPL rather than you
> missing anything with respect to the MPL/CDDL, but therein lies the
> educational value of these discussions.
>
> The CDDL defines "Modifications" as:
>
> "Modifications means the Source Code and Executable form of any of the
> following:
> A. Any file that results from an addition to, deletion from or
> modification of the contents of a file containing Original Software or
> previous Modifications;
> B. Any new file that contains any part of the Original Software or
> previous Modification; or
> C. Any new file that is contributed or otherwise made available
> under the terms of this License."
>
> The CDDL defines "Larger Work" as:
>
> "Larger Work means a work which combines Covered Software or portions
> thereof with code not governed by the terms of this License."
>
> It defines "Covered Software" as:
>
> "Covered Software means (a) the Original Software, or (b) Modifications,
> or (c) the combination of files containing Original Software with files
> containing Modifications, in each case including portions thereof.
>
> Let's use a simple directory-based example. Assume I've downloaded
> software having the following directory and file structure under the
> CDDL:
>
> Folder: ROOT
> - File: logfile
> - File: widget
> - File: fubar
>
> Assume further that each of these files in folder ROOT consist of 5
> lines of code.
>
> If I simply aggregate this folder and all of its files without
> modification with my own set of files (payroll, timecards, leads), the
> whole is a "Larger Work" under the CDDL and I can proceed licensing that
> entire work in executable format under terms of my choosing with no
> additional requirement that I make any of the files available in source
> code under the CDDL.
>
> The Copyright Act which defines "derivative work" as "a work that is
> based on (or derived from) one or more already existing works". The
> Copyright Office tells us that "A typical example of a derivative work
> received for registration in the Copyright Office is one that is
> primarily a new work but incorporates some previously published
> material. This previously published material makes the work a derivative
> work under the copyright law."
>
> In the example above the Larger Work fits the definition of a
> "derivative work". It is a new work that incorporates previously
> published material. Nonetheless, I have no "copyleft" obligations.
>
> If instead I deleted one line from logfile, and added 4 new lines to
> fubar, and aggregated the ROOT folder with the modified files with the
> same three self-developed files (payroll, timecards, leads), I may still
> distribute the Larger Work in executable format under terms of my
> choosing, but I have the additional obligation to make any "Covered
> Software" in the Larger Work "available in Source Code form and that
> Source Code form must be distributed only under the terms of this
> License." This means that I would have to make available redacted
> "logfile" (the 4 remaining lines) and supplemented "fubar" (all 9 lines)
> in source format under the terms of the CDDL.
No disagreement with the above.
>
> Using the same examples, how would you analyze my obligations under the
> EPL and its definition of "Contribution"?
>
> The EPL defines "Contribution" as:
>
> "Contribution" means:
>
> a) in the case of the initial Contributor, the initial code and
> documentation distributed under this Agreement, and
> b) in the case of each subsequent Contributor:
> i) changes to the Program, and
> ii) additions to the Program;
>
> where such changes and/or additions to the Program originate from and
> are distributed by that particular Contributor. A Contribution
> 'originates' from a Contributor if it was added to the Program by such
> Contributor itself or anyone acting on such Contributor's behalf.
> Contributions do not include additions to the Program which: (i) are
> separate modules of software distributed in conjunction with the Program
> under their own license agreement, and (ii) are not derivative works of
> the Program."
>
> Is there any possible aggregation of my files ("payroll," "timecards,"
> and "leads") with EPL-covered files, with or without modification, that
> is not "primarily a new work but incorporates some previously published
> material"? Given that the exception from EPL "copyleft" requirement is
> conjunctive (i.e., my work must be both (a) a separate module from the
> EPL-covered work and (b) not a derivative work of EPL-covered work, it
> doesn't seem that I can simply put my files in a separate "module" in
> the aggregation and escape having those files become "Contributions."
> In fact I think that it is the very act of aggregation that results in a
> "derivative work". Perhaps I don't understand what is meant by
> "module."
Whether the combination of payroll, timecard, and leads with logfile,
widget, and fubar creates a derivative work of the EPL code is a separate
question from whether the files payroll, timecard, and leads are
themselves derivative works. If you wrote these 3 files w/o reference to
the EPL code, then they are clearly not derivative works even though the
combination of all 6 would be. That is the issue being addressed by
clause (ii) of the conjunctive exception. If you add your 3 files, if you
do it in a way that they get compiled into a separate module from the EPL
licensed code, and if the 3 files weren't derived from the EPL licensed
code, then they are not considered a Contribution, and not subject to the
requirement that they be distributed under the EPL.
Re the meaning of module, here is a definition from one of the online
computing dictionaries:
module:
1. <programming> An independent piece of software which forms part of one
or more larger programs. Different languages have different concepts of a
module but there are several common ideas. Modules are usually compiled
separately (in compiled languages) and provide an abstraction or
information hiding mechanism so that a module's implementation can be
changed without requiring any change to other modules. In this respect
they are similar to objects in an object-oriented language, though a
module may contain many procedures and/or functions which would correspond
to many objects. A module often has its own name space for identifiers so
the same identifier may be used to mean different things in different
modules.
Multiple files can be combined into a single module, but do not need to
be. So, if in your example, each of the 6 files was compiled into its own
module, the MPL and EPL end up with the same result.
>
> In any case I personally would benefit from an example using the same
> facts as I've used above where my files ("payroll," "timecards," and
> "leads") are aggregated with the EPL-covered files in the ROOT folder to
> form a single application, and my files would not become a Contribution
> that I am obligated to offer under the terms of the EPL.
I can illustrate where I believe that you and I differ, though. Assume
that instead of adding just the 3 new files, you didn't like the way that
the original logfile code was implemented. You read and studied it and
considered making major changes to it, but rather than fight through this
unusual and poorly written code, you decide to completely rewrite that
function. You sit down and write "logfile2.0" which performs the same
function as logfile. Notwithstanding that you didn't directly copy
anything from logfile at all, you ended up writing logfile2.0 in such a
way as a court would conclude that it was a non-literal copy -- that is,
the court appointed expert would notice substantial similarities between
the two implementations and conclude that copying was the cause.
Where are we now? Do you have to license your logfile2.0 source code
under the MPL or EPL?
What you had said/implied before was that since you didn't copy any
literal code and since this is a separate FILE, the MPL doesn't reach that
new code. My concern is if that's the case, then the court would conclude
that you have no license to distribute the source or object code of
logfile2.0. This is why I'm suggesting that the definition of
Modification should not be so narrowly construed.
Under the EPL, I believe, the situation is much clearer. The copyright
grant is to create and distribute derivative works. Regardless of where
the line between derivative works and non-derivative works is drawn (as
you pointed out earlier, each jurisdiction might have its own definition),
only derivative works require consent of the copyright holder. So, the
copyright holder is giving you permission to create and distribute to the
full extent that such permission is needed.
>
> One last thought: it may be that I am reading the EPL exception
> language too literally. Maybe what is intended is the following:
>
> "Contributions do not include additions to the Program which are
> separate modules of software that do not include any part of the
> Program, but are distributed in conjunction with the Program under their
> own license agreement."
Something like that, but to the "do not include any part of the Program"
is somewhat unclear. Does it cover non-literal copying or not? Since
plaintiffs historically have been able to convince courts that non-literal
copying is not permitted, we need to address it. The best way I know how
to do so is to simply refer to the term "derivative work" since that, by
reference, incorporates all of the historical court opinions on the topic.
I realize that this means that the ultimate result is somewhat
unpredictable -- depending on which court you end up in, but that's the
case for most aspects of the law and I'd rather be uncertain as to what
license I need to distribute the source code under over being uncertain
about whether I have the right to distribute the code at all. The former
I can manage to. The latter, I can not.
>
> Help!
>
> Thanks,
>
> Jim
Jeff
Staff Counsel, IBM Corporation (914)766-1757 (tie)8-826 (fax) -8160
(notes) jthom@ibmus (internet) jthom@us.ibm.com (home) jeff@beff.net
(web) http://www.beff.net/
RE: virality of IBM's CPL ?
Posted by Jim Barnett <ji...@bea.com>.
Good points Jeff, but I not convinced that the "derivative work" status
of a work you produce is relevant for determining whether you are
subject to "copyleft" treatment under the CDDL/MPL. Also, it may be me
that's "missing something" with respect to the CPL/EPL rather than you
missing anything with respect to the MPL/CDDL, but therein lies the
educational value of these discussions.
The CDDL defines "Modifications" as:
"Modifications means the Source Code and Executable form of any of the
following:
A. Any file that results from an addition to, deletion from or
modification of the contents of a file containing Original Software or
previous Modifications;
B. Any new file that contains any part of the Original Software or
previous Modification; or
C. Any new file that is contributed or otherwise made available
under the terms of this License."
The CDDL defines "Larger Work" as:
"Larger Work means a work which combines Covered Software or portions
thereof with code not governed by the terms of this License."
It defines "Covered Software" as:
"Covered Software means (a) the Original Software, or (b) Modifications,
or (c) the combination of files containing Original Software with files
containing Modifications, in each case including portions thereof.
Let's use a simple directory-based example. Assume I've downloaded
software having the following directory and file structure under the
CDDL:
Folder: ROOT
- File: logfile
- File: widget
- File: fubar
Assume further that each of these files in folder ROOT consist of 5
lines of code.
If I simply aggregate this folder and all of its files without
modification with my own set of files (payroll, timecards, leads), the
whole is a "Larger Work" under the CDDL and I can proceed licensing that
entire work in executable format under terms of my choosing with no
additional requirement that I make any of the files available in source
code under the CDDL.
The Copyright Act which defines "derivative work" as "a work that is
based on (or derived from) one or more already existing works". The
Copyright Office tells us that "A typical example of a derivative work
received for registration in the Copyright Office is one that is
primarily a new work but incorporates some previously published
material. This previously published material makes the work a derivative
work under the copyright law."
In the example above the Larger Work fits the definition of a
"derivative work". It is a new work that incorporates previously
published material. Nonetheless, I have no "copyleft" obligations.
If instead I deleted one line from logfile, and added 4 new lines to
fubar, and aggregated the ROOT folder with the modified files with the
same three self-developed files (payroll, timecards, leads), I may still
distribute the Larger Work in executable format under terms of my
choosing, but I have the additional obligation to make any "Covered
Software" in the Larger Work "available in Source Code form and that
Source Code form must be distributed only under the terms of this
License." This means that I would have to make available redacted
"logfile" (the 4 remaining lines) and supplemented "fubar" (all 9 lines)
in source format under the terms of the CDDL.
Using the same examples, how would you analyze my obligations under the
EPL and its definition of "Contribution"?
The EPL defines "Contribution" as:
"Contribution" means:
a) in the case of the initial Contributor, the initial code and
documentation distributed under this Agreement, and
b) in the case of each subsequent Contributor:
i) changes to the Program, and
ii) additions to the Program;
where such changes and/or additions to the Program originate from and
are distributed by that particular Contributor. A Contribution
'originates' from a Contributor if it was added to the Program by such
Contributor itself or anyone acting on such Contributor's behalf.
Contributions do not include additions to the Program which: (i) are
separate modules of software distributed in conjunction with the Program
under their own license agreement, and (ii) are not derivative works of
the Program."
Is there any possible aggregation of my files ("payroll," "timecards,"
and "leads") with EPL-covered files, with or without modification, that
is not "primarily a new work but incorporates some previously published
material"? Given that the exception from EPL "copyleft" requirement is
conjunctive (i.e., my work must be both (a) a separate module from the
EPL-covered work and (b) not a derivative work of EPL-covered work, it
doesn't seem that I can simply put my files in a separate "module" in
the aggregation and escape having those files become "Contributions."
In fact I think that it is the very act of aggregation that results in a
"derivative work". Perhaps I don't understand what is meant by
"module."
In any case I personally would benefit from an example using the same
facts as I've used above where my files ("payroll," "timecards," and
"leads") are aggregated with the EPL-covered files in the ROOT folder to
form a single application, and my files would not become a Contribution
that I am obligated to offer under the terms of the EPL.
One last thought: it may be that I am reading the EPL exception
language too literally. Maybe what is intended is the following:
"Contributions do not include additions to the Program which are
separate modules of software that do not include any part of the
Program, but are distributed in conjunction with the Program under their
own license agreement."
Help!
Thanks,
Jim
-----Original Message-----
From: Jeffrey Thompson [mailto:jthom@us.ibm.com]
Sent: Wednesday, July 26, 2006 12:54 PM
To: Jim Barnett
Cc: Legal Discuss; paul@activemath.org
Subject: RE: virality of IBM's CPL ?
"Jim Barnett" <ji...@bea.com> wrote on 07/25/2006 07:04:37 PM:
> Not mentioning "derivative work" does not necessarily mean that
> preparation of derivative works is prohibited by the MPL/CDDL. The
> MPL/CDDL family does not expressly prohibit you from preparing
> derivatives and the broad MPL/CDDL license grant covers acts that can
> (but do not always) result in the creation of derivative works.
>
I think you're making a distinction that doesn't really create a
difference. If you end up in a jurisdiction that recognizes non-literal
substantial similarity as a derivative work, under the CPL/EPL, you have
clear rights to distribute that with the price that if its really a
derivative work, you'll need to distribute the source under CPL/EPL.
I would be concerned with your interpretation of the CDDL/MPL, that if
you
exclude those non-literal substantial similarities from the definition
of
Modification, then the right to distribute is in question since you only
have the right to distribute Original Code and Modifications
(potentially
with other, unrelated code). If the court recognizes it as a derivative
and accepts your argument that it isn't a Modification, then what is it?
Where is the distribution right?
So, I would expect that if challenged, the CDDL/MPL user will
acknowledge
that all derivative works are covered in the definition of
"Modification"
-- that the reference to "Any new file that contains any part of the
Original Software" includes those situations where the copyright law
says
new code is a derivative of the Original Software though something akin
to
non-literal copying. Otherwise, they have no right to distribute it at
all.
Am I missing something?
Jeff
Staff Counsel, IBM Corporation (914)766-1757 (tie)8-826 (fax) -8160
(notes) jthom@ibmus (internet) jthom@us.ibm.com (home) jeff@beff.net
(web) http://www.beff.net/
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RE: virality of IBM's CPL ?
Posted by Jeffrey Thompson <jt...@us.ibm.com>.
"Jim Barnett" <ji...@bea.com> wrote on 07/25/2006 07:04:37 PM:
> Not mentioning "derivative work" does not necessarily mean that
> preparation of derivative works is prohibited by the MPL/CDDL. The
> MPL/CDDL family does not expressly prohibit you from preparing
> derivatives and the broad MPL/CDDL license grant covers acts that can
> (but do not always) result in the creation of derivative works.
>
I think you're making a distinction that doesn't really create a
difference. If you end up in a jurisdiction that recognizes non-literal
substantial similarity as a derivative work, under the CPL/EPL, you have
clear rights to distribute that with the price that if its really a
derivative work, you'll need to distribute the source under CPL/EPL.
I would be concerned with your interpretation of the CDDL/MPL, that if you
exclude those non-literal substantial similarities from the definition of
Modification, then the right to distribute is in question since you only
have the right to distribute Original Code and Modifications (potentially
with other, unrelated code). If the court recognizes it as a derivative
and accepts your argument that it isn't a Modification, then what is it?
Where is the distribution right?
So, I would expect that if challenged, the CDDL/MPL user will acknowledge
that all derivative works are covered in the definition of "Modification"
-- that the reference to "Any new file that contains any part of the
Original Software" includes those situations where the copyright law says
new code is a derivative of the Original Software though something akin to
non-literal copying. Otherwise, they have no right to distribute it at
all.
Am I missing something?
Jeff
Staff Counsel, IBM Corporation (914)766-1757 (tie)8-826 (fax) -8160
(notes) jthom@ibmus (internet) jthom@us.ibm.com (home) jeff@beff.net
(web) http://www.beff.net/
RE: virality of IBM's CPL ?
Posted by Jim Barnett <ji...@bea.com>.
Not mentioning "derivative work" does not necessarily mean that
preparation of derivative works is prohibited by the MPL/CDDL. The
MPL/CDDL family does not expressly prohibit you from preparing
derivatives and the broad MPL/CDDL license grant covers acts that can
(but do not always) result in the creation of derivative works.
"Initial Developer hereby grants You a world-wide, royalty-free,
non-exclusive license: (a) under intellectual property rights (other
than patent or trademark) Licensable by Initial Developer, to use,
reproduce, modify, display, perform, sublicense and distribute the
Original Software (or portions thereof), with or without Modifications,
and/or as part of a Larger Work..."
On the other hand, the MPL/CDDL does say that if the work you create
under the quoted license grant happens legally to be a derivative work,
you are subject to "copyleft" (i.e., obligated to re-license that work
under the MPL/CPL).
While the CPL/EPL may expressly use the term "derivative work" in the
license grant, the price for exercising that right is to be bound to
re-license that derivative work under the CPL/EPL terms. Under the CPL,
any addition you make to the original "Program" is deemed to be a
Contribution (and therefore automatically re-licensed under the terms of
the CPL) unless you satisfy two exceptions: the addition must be a
separate module and the addition must not be a derivative work. As a
side note, I've seen different definitions of "module" as well, which
could impact whether your additions to CPL-covered code qualify for the
exception from the CPL/EPL "copyleft" requirements even if they are
*not* derivative works. Note that the two prongs of the exception are
conjunctive.
My point was that the derivative/non-derivative status of your work is
pretty much irrelevant under the MPL/CDDL yet crucial under the CPL/EPL
in determining whether the "copyleft" aspects of the relevant license
applies. If a developer isn't positive what a "derivative work" is and
wants to license his work under a particular license (i.e., such as the
ASF 2.0 License), is it could be risky to use code licensed under a
CPL/EPL model in creating that work.
Regards,
Jim
-----Original Message-----
From: Jeffrey Thompson [mailto:jthom@us.ibm.com]
Sent: Tuesday, July 25, 2006 3:16 PM
To: Jim Barnett
Cc: Legal Discuss; paul@activemath.org
Subject: RE: virality of IBM's CPL ?
"Jim Barnett" <ji...@bea.com> wrote on 07/25/2006 12:28:17 PM:
> On the virality front, the CDDL and MPL differentiate based on file
> changes alone (i.e., "1.3. Covered Software means (a) the Original
> Software, or (b) Modifications, or (c) the combination of files
> containing Original Software with files containing Modifications, in
> each case including portions thereof."). There is no mention of
> "derivative work" in this license family.
>
OK, the CDDL and MPL don't permit you to make derivative works. They
only
permit you to make Modifications (which according to your reasoning
don't
include the creation of substantially similar works through non-literal
copying). Isn't that a hole? You're completely outside the license,
and
therefore an infringer. How is that better than being inside the
license,
but having an obligation to release the code under the license of the
original work?
Jeff
Staff Counsel, IBM Corporation (914)766-1757 (tie)8-826 (fax) -8160
(notes) jthom@ibmus (internet) jthom@us.ibm.com (home) jeff@beff.net
(web) http://www.beff.net/
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RE: virality of IBM's CPL ?
Posted by Jeffrey Thompson <jt...@us.ibm.com>.
"Jim Barnett" <ji...@bea.com> wrote on 07/25/2006 12:28:17 PM:
> On the virality front, the CDDL and MPL differentiate based on file
> changes alone (i.e., "1.3. Covered Software means (a) the Original
> Software, or (b) Modifications, or (c) the combination of files
> containing Original Software with files containing Modifications, in
> each case including portions thereof."). There is no mention of
> "derivative work" in this license family.
>
OK, the CDDL and MPL don't permit you to make derivative works. They only
permit you to make Modifications (which according to your reasoning don't
include the creation of substantially similar works through non-literal
copying). Isn't that a hole? You're completely outside the license, and
therefore an infringer. How is that better than being inside the license,
but having an obligation to release the code under the license of the
original work?
Jeff
Staff Counsel, IBM Corporation (914)766-1757 (tie)8-826 (fax) -8160
(notes) jthom@ibmus (internet) jthom@us.ibm.com (home) jeff@beff.net
(web) http://www.beff.net/
RE: virality of IBM's CPL ?
Posted by Jim Barnett <ji...@bea.com>.
-----Original Message-----
From: Jeffrey Thompson [mailto:jthom@us.ibm.com]
Sent: Monday, July 24, 2006 6:27 PM
To: Jim Barnett
Cc: Legal Discuss; paul@activemath.org
Subject: RE: virality of IBM's CPL ?
<snip> That wasn't Paul's question. His question was very narrow and
fairly
clear. Would linking to a CPL licensed program create a viral problem.
The answer to that is clearly "no". If the new module isn't a copyright
derivative in the traditional sense, the linking doesn't change that.
<snip>
While my comments may not address Paul's specific question about
linking, they are directed at the general topic he chose for the thread:
"Virality of IBM's CPL?"
Given the reliance on "derivative" as a differentiator between CPL/EPL
infected works and separate works free from the viral aspect of the
license(s), ASF project participants should not assume automatically
based on the answer to Paul's specific fact pattern that use of CPL/EPL
code in ASF projects generally is "okay". Rather to make that
determination the contributor needs to understand the viral trigger and
so that the broader work is not legally a derivative of the CPL/EPL
portion.
<snip> CDDL and MPL differentiate based on file. EPL and CPL
differentiate based on module. <snip>
Hmm, I think that ignores a material difference between the two license
families. What we're talking about is "virality". Virality in this
context means the obligation to adopt and apply the CPL/EPL to code you
develop by virtue of you having used CPL/EPL code in your project.
On the virality front, the CDDL and MPL differentiate based on file
changes alone (i.e., "1.3. Covered Software means (a) the Original
Software, or (b) Modifications, or (c) the combination of files
containing Original Software with files containing Modifications, in
each case including portions thereof."). There is no mention of
"derivative work" in this license family.
In contrast, the CPL/EPL do not differentiate based on "module" alone.
The CPL states: "Contributions do not include additions to the Program
which: (i) are separate modules of software distributed in conjunction
with the Program under their own license agreement, and (ii) are not
derivative works of the Program." There are two material
differentiators in the CPL/EPL - "separate module" and "not a
derivative" - not merely one.
So why does it matter? It matters because the meaning of "derivative
work" is not universal. Different federal courts have differing
interpretations of the phrase. Legal scholars likewise disagree on its
meaning. (See, for example, Larry Rosen's article in Linux Journal
http://linuxjournal.com/article/6366; "Many users of open-source
software are frightened by the term ``derivative works''. They worry
they might accidentally create derivative works and put their own
proprietary software under an open-source license. This is a complex
topic that courts and lawyers disagree on, but I think we find
definitions to ease people's concerns.").
In my opinion, by making virality of the CPL/EPL turn on a complex (in
its application) legal concept of uncertain meaning
jurisdiction-to-jurisdiction, lawyer-to-lawyer, the risk of accidentally
triggering unwanted virality when using code licensed under such a
license is higher than in the case of a simpler one-trigger license that
does not rely on the "derivative work" concept as a differentiator.
Were I to draw a risk spectrum of "virality" and place common
OSI-approved licenses on that spectrum, I would put the ASF and BSD
licenses at one extreme ("Least Viral"), the GPL at the other extreme
("Most Viral") and arrange the MPL/CDDL followed by the EPL/CPL and then
the LGPL along the spectrum from Least Viral to Most Viral.
I believe the EPL/CPL can be used successfully in development of larger
works. Doing so, however, requires a developer/contributor to make a
determination as to what "derivative work" means in the context of
software, and apply that understanding to his or her intended use of the
EPL/CPL covered code in the larger project. Collateral such as
interpretive licensing FAQs by authors/copyright owners are useful in
helping make the determination, but it is important that
developers/contributors understand that an interpretive FAQ published by
one author/copyright owner using a particular form of license is not
binding on other, unrelated authors/copyright owners who elect to use
that same license form.
Regards,
Jim
_______________________________________________________________________
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RE: virality of IBM's CPL ?
Posted by Jeffrey Thompson <jt...@us.ibm.com>.
"Jim Barnett" <ji...@bea.com> wrote on 07/24/2006 02:42:47 PM:
> "Separate modules that aren't *otherwise derived from*
> each other have no license effect, at least as far as the CPL is
> concerned."
>
> True, but the concept of "derivation" is a fuzzy one.
I don't agree. The definition is fairly clear. Giving a priori advice on
how to avoid unintentionally making derivatives may be fuzzy.
>
> Does a developer that has looked at CPL-covered code, but then develops
> his or her own separate module "derive" anything from the CPL-covered
> module viewed?
That wasn't Paul's question. His question was very narrow and fairly
clear. Would linking to a CPL licensed program create a viral problem.
The answer to that is clearly "no". If the new module isn't a copyright
derivative in the traditional sense, the linking doesn't change that.
>Is exposure alone (i.e., access) to copyrighted work
> governed by the CPL enough to render any subsequent similar work by the
> developer a "derivative" of the CPL code? How does a developer know
> when he or she is deriving from a prior work?
In any case where you are reading someone else's code and writing new code
which ends up "substantially similar" (which means that an objective
observer reading the two implementations would be struck by the
similarities and conclude that copying is the most likely cause for them)
you have an issue. But, why is that relevant?
You also mention the CDDL and the MPL, but I don't remember anything in
either of those licenses that authorizes you to create substantially
similar, non-literal copies of their licensed code and avoid the copyright
claims as long as you put the result in a separate "file". This is an
issue inherent in copyright, and is not license-specific. But again, its
not the question that Paul asked.
CDDL and MPL differentiate based on file. EPL and CPL differentiate based
on module. Personally, I think basing the distinction on a file basis
just encourages an overuse of #include, but its not really that important
and its a discussion for a different day in any event.
Jeff
Staff Counsel, IBM Corporation (914)766-1757 (tie)8-826 (fax) -8160
(notes) jthom@ibmus (internet) jthom@us.ibm.com (home) jeff@beff.net
(web) http://www.beff.net/
RE: virality of IBM's CPL ?
Posted by Jim Barnett <ji...@bea.com>.
"Separate modules that aren't *otherwise derived from*
each other have no license effect, at least as far as the CPL is
concerned."
True, but the concept of "derivation" is a fuzzy one.
Does a developer that has looked at CPL-covered code, but then develops
his or her own separate module "derive" anything from the CPL-covered
module viewed? Is exposure alone (i.e., access) to copyrighted work
governed by the CPL enough to render any subsequent similar work by the
developer a "derivative" of the CPL code? How does a developer know
when he or she is deriving from a prior work?
I think the risk of accidentally creating a derivative of a CPL or EPL
covered work is present. It's not as bad as the dictatorial GPL or LGPL
on the derivative work question, but to avoid triggering the copyleft
aspects of the license the developers need to understand what derivation
means. Derivation is a tricky concept for IP attorneys and isn't
well-defined in the copyright act or well understood by courts. I think
the misgivings about the license in the ASF context aren't misplaced.
I also think that the risk of unintentionally triggering the CPL (or EPL
for that matter) copyleft requirement is higher than the similar risk
when using CDDL or MPL covered code. The CDDL and MPL attach the
copyleft requirement not to derivative works but rather to Modifications
to the original MPL/CDDL-covered "files". Additions of other files to
those native MPL/CDDL files to remain free from copyleft encumbrances.
Tracking changes to files versus "derivatives" is easier to administer
from an IP rights and obligations management perspective.
Finally the FAQ's are useful as admissions by IBM when IBM is the
licensee, but what about when another licensor who is not IBM adopts the
CPL license? The FAQ contains IBM's interpretation of the license.
That would probably not be binding on an adopter who does not also adopt
a similar FAQ.
I'm not knocking the EPL or CPL. We use code licensed under both from
time to time. It's just that doing so requires more legal knowledge,
more oversight and more developer training than some of the other
licenses if you want to avoid the copyleft aspect of the licenses. In
an ASF project context, I would think that it could be difficult to
administer and track those obligations given the decentralized, open
work model.
Regards,
Jim
-----Original Message-----
From: Jeffrey Thompson [mailto:jthom@us.ibm.com]
Sent: Monday, July 24, 2006 8:58 AM
To: paul@activemath.org
Cc: Legal Discuss
Subject: Re: virality of IBM's CPL ?
Paul Libbrecht <pa...@activemath.org> wrote on 07/24/2006 11:17:39 AM:
>
> Hello,
>
> we discussed recently with a legal person to review our third-party
> dependencies and the person interpreted that any derived work of a
> CPL-licensed library should also be CPL; at it seemed, derived work
> might be any linking... so that would imply any jUnit test case or
> anything touching wsdl4j is under CPL... not what we expect !
>
> Can anyone please contradict me here ?
>
> thanks
>
> paul
I'm happy to contradict you . . .
Look at http://www-128.ibm.com/developerworks/library/os-cplfaq.html,
specifically the answer to #19 and the examples. The CPL definitions
rely
on module boundaries. Separate modules that aren't otherwise derived
from
each other have no license effect, at least as far as the CPL is
concerned.
Jeff
Staff Counsel, IBM Corporation (914)766-1757 (tie)8-826 (fax) -8160
(notes) jthom@ibmus (internet) jthom@us.ibm.com (home) jeff@beff.net
(web) http://www.beff.net/
_______________________________________________________________________
Notice: This email message, together with any attachments, may contain
information of BEA Systems, Inc., its subsidiaries and affiliated
entities, that may be confidential, proprietary, copyrighted and/or
legally privileged, and is intended solely for the use of the individual
or entity named in this message. If you are not the intended recipient,
and have received this message in error, please immediately return this
by email and then delete it.
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DISCLAIMER: Discussions on this list are informational and educational
only. Statements made on this list are not privileged, do not
constitute legal advice, and do not necessarily reflect the opinions
and policies of the ASF. See <http://www.apache.org/licenses/> for
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Re: virality of IBM's CPL ?
Posted by Jeffrey Thompson <jt...@us.ibm.com>.
Paul Libbrecht <pa...@activemath.org> wrote on 07/24/2006 11:17:39 AM:
>
> Hello,
>
> we discussed recently with a legal person to review our third-party
> dependencies and the person interpreted that any derived work of a
> CPL-licensed library should also be CPL; at it seemed, derived work
> might be any linking... so that would imply any jUnit test case or
> anything touching wsdl4j is under CPL... not what we expect !
>
> Can anyone please contradict me here ?
>
> thanks
>
> paul
I'm happy to contradict you . . .
Look at http://www-128.ibm.com/developerworks/library/os-cplfaq.html,
specifically the answer to #19 and the examples. The CPL definitions rely
on module boundaries. Separate modules that aren't otherwise derived from
each other have no license effect, at least as far as the CPL is
concerned.
Jeff
Staff Counsel, IBM Corporation (914)766-1757 (tie)8-826 (fax) -8160
(notes) jthom@ibmus (internet) jthom@us.ibm.com (home) jeff@beff.net
(web) http://www.beff.net/