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Posted to legal-discuss@apache.org by Rainer Döbele <do...@esteam.de> on 2009/03/15 23:02:04 UTC
ICLA required?
Hello everyone,
on our Empire-db project (http://incubator.apache.org/projects/empire-db.html) we recently had a discussion about an incident which we could not finally resolve.
We hope that someone here on this forum could give us a proper legal advice on the issue.
Here is the case:
A committer "C" of Empire-db had the idea to create and provide an example application that demonstrates how to use Apache Empire-db together with Apache CXF. Initially he intended to write the code himself, but then he found himself too busy and never really got around doing it. So he decided to ask a student "S" instead to write the code for him using his templates and ideas. S then wrote the code with a little aid of C and he got paid for it. The work contract S had with C said that all rights over the code would exclusively belong to C. After the work was finished, C contributed the code via his SVN account.
Some people now argued, that since S has written substantial parts of the code, the ICLA of C was not sufficient and an ICLA for S would also be required. C claims that since he is the exclusive legal owner of all rights over the code that was submitted, only he could contribute it to the ASF and an ICLA for S is from a legal point of view not required, even though S is the originator.
Now the question is, is C right or is an ICLA for S really required (and if so, why?)
Thanks for your help.
Rainer
Re: ICLA required?
Posted by Sam Ruby <ru...@intertwingly.net>.
On Sun, Mar 15, 2009 at 6:02 PM, Rainer Döbele <do...@esteam.de> wrote:
>
> Now the question is, is C right or is an ICLA for S really required (and if
> so, why?)
Often cases the simplest approaches work best. Whether it is
necessary or not, has "S" been asked to provide an ICLA?
- Sam Ruby
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Re: ICLA required?
Posted by Marc Poussin <ma...@gmail.com>.
It depends of what is written in the contract. When ip comes to be an issue
in work contract, different solutions can be retained by court:
1st: that contract includes IP right translation, so the employer is the
owner and the employee gave up his right
2nd: that contract does not includes IP rights but main purpose is to work
on IP stuff, then usually the IP belong to the employer
3d: that contrat does not includes IP and does not mention expressively the
kind of work the employee has to do. Then the solution usually is to give a
bonus to the employee in order for him to give up his ip rights. Ip could
also be transferred if the employeer has given direction and skills
necessary to write the program. That solution is often contested.
In FRANCE (and i dunow for the USA), we usually consider that an employee,
wich work is to produce IP concerned stuff, automatically transfer the IP
rights to the owner, because creating IP protected stuff is the main purpose
of the contract.
If the work is not to produce IP, and some is done, we usually consider that
the employer must buy the stuff, with a preemptive right.
In that case, it looks like the work S has been paid for is mainly focused
on producing software which is IP protected. The solution we would have in
FRANCE would be the second option.
Cheers,
Marc
On Mon, Mar 16, 2009 at 9:02 AM, Henri Yandell <hy...@gmail.com> wrote:
> Agreed, with usual caveat as below.
>
> On Sun, Mar 15, 2009 at 9:05 PM, Ralph Goers <ra...@dslextreme.com>
> wrote:
> > Usual caveat that I am not a lawyer. But if C actually has a written
> > contract with S that C would own the code then I fail to see how it could
> be
> > otherwise. This would be no different than if C was an employer and S
> tried
> > to submit the code to Apache. In that case S would need a CCLA from C to
> say
> > that S could submit the code. But C could always submit the code to
> Apache
> > under a software grant regardless of S - or any other employees of C -
> > having worked on it.
> > In short, C has the legal right to do whatever he/she wants with the code
> > since they are the lawful owner of it. Since C has an ICLA on file they
> are
> > free to submit the code just as if they had written it on their own.
> > Ralph
> > On Mar 15, 2009, at 3:02 PM, Rainer Döbele wrote:
> >
> > Hello everyone,
> >
> > on our Empire-db project
> > (http://incubator.apache.org/projects/empire-db.html) we recently had a
> > discussion about an incident which we could not finally resolve.
> > We hope that someone here on this forum could give us a proper legal
> advice
> > on the issue.
> >
> > Here is the case:
> >
> > A committer "C" of Empire-db had the idea to create and provide an
> example
> > application that demonstrates how to use Apache Empire-db together with
> > Apache CXF. Initially he intended to write the code himself, but then he
> > found himself too busy and never really got around doing it. So he
> decided
> > to ask a student "S" instead to write the code for him using his
> templates
> > and ideas. S then wrote the code with a little aid of C and he got paid
> for
> > it. The work contract S had with C said that all rights over the code
> would
> > exclusively belong to C. After the work was finished, C contributed the
> code
> > via his SVN account.
> >
> > Some people now argued, that since S has written substantial parts of the
> > code, the ICLA of C was not sufficient and an ICLA for S would also be
> > required. C claims that since he is the exclusive legal owner of all
> rights
> > over the code that was submitted, only he could contribute it to the ASF
> and
> > an ICLA for S is from a legal point of view not required, even though S
> is
> > the originator.
> >
> > Now the question is, is C right or is an ICLA for S really required (and
> if
> > so, why?)
> >
> > Thanks for your help.
> > Rainer
> >
> >
>
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>
Re: ICLA required?
Posted by Henri Yandell <hy...@gmail.com>.
Agreed, with usual caveat as below.
On Sun, Mar 15, 2009 at 9:05 PM, Ralph Goers <ra...@dslextreme.com> wrote:
> Usual caveat that I am not a lawyer. But if C actually has a written
> contract with S that C would own the code then I fail to see how it could be
> otherwise. This would be no different than if C was an employer and S tried
> to submit the code to Apache. In that case S would need a CCLA from C to say
> that S could submit the code. But C could always submit the code to Apache
> under a software grant regardless of S - or any other employees of C -
> having worked on it.
> In short, C has the legal right to do whatever he/she wants with the code
> since they are the lawful owner of it. Since C has an ICLA on file they are
> free to submit the code just as if they had written it on their own.
> Ralph
> On Mar 15, 2009, at 3:02 PM, Rainer Döbele wrote:
>
> Hello everyone,
>
> on our Empire-db project
> (http://incubator.apache.org/projects/empire-db.html) we recently had a
> discussion about an incident which we could not finally resolve.
> We hope that someone here on this forum could give us a proper legal advice
> on the issue.
>
> Here is the case:
>
> A committer "C" of Empire-db had the idea to create and provide an example
> application that demonstrates how to use Apache Empire-db together with
> Apache CXF. Initially he intended to write the code himself, but then he
> found himself too busy and never really got around doing it. So he decided
> to ask a student "S" instead to write the code for him using his templates
> and ideas. S then wrote the code with a little aid of C and he got paid for
> it. The work contract S had with C said that all rights over the code would
> exclusively belong to C. After the work was finished, C contributed the code
> via his SVN account.
>
> Some people now argued, that since S has written substantial parts of the
> code, the ICLA of C was not sufficient and an ICLA for S would also be
> required. C claims that since he is the exclusive legal owner of all rights
> over the code that was submitted, only he could contribute it to the ASF and
> an ICLA for S is from a legal point of view not required, even though S is
> the originator.
>
> Now the question is, is C right or is an ICLA for S really required (and if
> so, why?)
>
> Thanks for your help.
> Rainer
>
>
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Re: ICLA required?
Posted by Ralph Goers <ra...@dslextreme.com>.
Usual caveat that I am not a lawyer. But if C actually has a written
contract with S that C would own the code then I fail to see how it
could be otherwise. This would be no different than if C was an
employer and S tried to submit the code to Apache. In that case S
would need a CCLA from C to say that S could submit the code. But C
could always submit the code to Apache under a software grant
regardless of S - or any other employees of C - having worked on it.
In short, C has the legal right to do whatever he/she wants with the
code since they are the lawful owner of it. Since C has an ICLA on
file they are free to submit the code just as if they had written it
on their own.
Ralph
On Mar 15, 2009, at 3:02 PM, Rainer Döbele wrote:
> Hello everyone,
>
> on our Empire-db project (http://incubator.apache.org/projects/empire-db.html
> ) we recently had a discussion about an incident which we could not
> finally resolve.
> We hope that someone here on this forum could give us a proper legal
> advice on the issue.
>
> Here is the case:
>
> A committer "C" of Empire-db had the idea to create and provide an
> example application that demonstrates how to use Apache Empire-db
> together with Apache CXF. Initially he intended to write the code
> himself, but then he found himself too busy and never really got
> around doing it. So he decided to ask a student "S" instead to write
> the code for him using his templates and ideas. S then wrote the
> code with a little aid of C and he got paid for it. The work
> contract S had with C said that all rights over the code would
> exclusively belong to C. After the work was finished, C contributed
> the code via his SVN account.
>
> Some people now argued, that since S has written substantial parts
> of the code, the ICLA of C was not sufficient and an ICLA for S
> would also be required. C claims that since he is the exclusive
> legal owner of all rights over the code that was submitted, only he
> could contribute it to the ASF and an ICLA for S is from a legal
> point of view not required, even though S is the originator.
>
> Now the question is, is C right or is an ICLA for S really required
> (and if so, why?)
>
> Thanks for your help.
> Rainer
>
Re: ICLA required?
Posted by Martijn Dashorst <ma...@gmail.com>.
Is the owner C or the Company of C?
IMO, the owner of said code is Company of C, not C (unless C *is* the
company). Since C is not original author of the contribution, the code
should be covered by a software grant, or by an ICLA (and possibly a
CCLA)
Martijn
On Sun, Mar 15, 2009 at 11:02 PM, Rainer Döbele <do...@esteam.de> wrote:
> Hello everyone,
>
> on our Empire-db project
> (http://incubator.apache.org/projects/empire-db.html) we recently had a
> discussion about an incident which we could not finally resolve.
> We hope that someone here on this forum could give us a proper legal advice
> on the issue.
>
> Here is the case:
>
> A committer "C" of Empire-db had the idea to create and provide an example
> application that demonstrates how to use Apache Empire-db together with
> Apache CXF. Initially he intended to write the code himself, but then he
> found himself too busy and never really got around doing it. So he decided
> to ask a student "S" instead to write the code for him using his templates
> and ideas. S then wrote the code with a little aid of C and he got paid for
> it. The work contract S had with C said that all rights over the code would
> exclusively belong to C. After the work was finished, C contributed the code
> via his SVN account.
>
> Some people now argued, that since S has written substantial parts of the
> code, the ICLA of C was not sufficient and an ICLA for S would also be
> required. C claims that since he is the exclusive legal owner of all rights
> over the code that was submitted, only he could contribute it to the ASF and
> an ICLA for S is from a legal point of view not required, even though S is
> the originator.
>
> Now the question is, is C right or is an ICLA for S really required (and if
> so, why?)
>
> Thanks for your help.
> Rainer
>
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