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Posted to legal-discuss@apache.org by Evan Ward <ev...@nrl.navy.mil> on 2014/04/07 17:28:04 UTC
Re: ICLA US Government
Update: Heard back from Daniel Risacher today. Apparently the NSA had
the same concerns we have, but decided not to argue about subtle
differences ("de minimis non curat lex"). Still waiting to hear if this
agency will take the same position.
Best Regards,
Evan
On Thu 27 Mar 2014 03:10:55 PM EDT, Doug Cutting wrote:
> On Thu, Mar 27, 2014 at 6:46 AM, Evan Ward <ev...@nrl.navy.mil> wrote:
>> As Luc, said I can post the contributions to github (or JIRA) and make
>> clear that the project as a whole is under the Apache License, and my
>> patches are in the public domain. Then based on the Apache's legal FAQ
>> and Larry's earlier comments Apache is both able and glad to accept the
>> contributions.
>
> If you can do this, then you can sign an ICLA and commit these changes
> directly. When you attach to Jira, intentionally submitting to an
> Apache-licensed project, you agree to the same terms as the ICLA.
> What makes you think these are different?
>
>> As I mentioned before, If someone from Apache wants to talk directly to
>> the people here with the power to make a decision, I can provide contact
>> information.
>
> You do not need your employer's permission to sign an ICLA. You need
> your employer's permission to contribute software under the Apache
> License. Once you have that permission, whether you choose to attach
> to Jira or sign an ICLA and commit directly makes no legal difference
> to you or to your employer.
>
> Doug
>
> ---------------------------------------------------------------------
> To unsubscribe, e-mail: legal-discuss-unsubscribe@apache.org
> For additional commands, e-mail: legal-discuss-help@apache.org
>
Re: ICLA US Government
Posted by Richard Fontana <rf...@redhat.com>.
On Thu, May 15, 2014 at 09:03:01PM -0700, Lawrence Rosen wrote:
[...]
> Your lawyers are making a mountain out of a molehill. Is yours the only US
> government department that objects to Apache's long-held contribution
> requirements? Or do we have a bigger problem with US government agencies that
> we need to address more broadly?
I have come to believe as a result of threads like this -- which have
counterparts in non-ASF projects I've had involvement in as a lawyer
-- that there *is* a big problem with IP lawyers for US government
agencies in relation to open source. They appear to be all over the
place on issues of this sort; each agency seems to have a different
interpretation of what 17 USC 105 even means and how it relates, if at
all, to something like the Apache ICLA or the Apache License 2.0
itself.
- RF
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Re: ICLA US Government
Posted by "Mattmann, Chris A (3980)" <ch...@jpl.nasa.gov>.
Yay!
Sent from my iPhone
> On May 27, 2014, at 11:36 AM, "Evan Ward" <ev...@nrl.navy.mil> wrote:
>
> So the legal department here has decided that I can sign the Apache ICLA. :)
>
> Just as the NSA Accumulo decision was limited to that particular case,
> this decision is limited to my particular case and planned
> contributions. I believe there is still interest on this end to find a
> more general solution that will allow a greater range of contributions
> from the government, if Apache is willing.
>
> Best Regards,
> Evan
>
>> On Fri 16 May 2014 12:52:42 PM EDT, Evan Ward wrote:
>>
>>
>>> On 05/16/2014 12:03 AM, Lawrence Rosen wrote:
>>>
>>>
>>> Evan,
>>>
>>>
>>>
>>> Perhaps a sarcastic argument from me will point out the silliness of
>>> your refusal to sign an Apache ICLA. Shall Apache users who want your
>>> public domain code simply file a Freedom Of Information Act (FOIA)
>>> request to get it and ignore the ICLA and your department's approval
>>> and your participation altogether?
>>>
>>>
>>>
>>> If your software is truly public domain, then we don't actually need
>>> you to give us your code. It is ours regardless of what mechanism
>>> you use to hand it over to us. [I'm not speaking of government
>>> **confidential** code, so don't worry about my reckless grab!]
>>>
>>>
>>>
>>> In that sense, your lawyers are right. The ICLA is a frivolity for
>>> public domain contributions.
>>>
>>>
>>>
>>> But redundant or no, I believe I can describe Apache's mandatory
>>> procedures this way: In order for any **individual** to become an
>>> Apache contributor, **that person** must sign an ICLA.
>>>
>>>
>>>
>>> This is entirely nondiscriminatory, by the way. I am a lawyer and
>>> haven't written a line of code in years. Yet I signed an ICLA when I
>>> got here just like everybody else. And so my contributions here, such
>>> as this email response, are licensed to Apache – and hence to you and
>>> to the US government -- under the Apache license. This is true even
>>> if my emails quote US law, as I occasionally do here. The fact that
>>> US law that I cite happens to be public domain is irrelevant. :-)
>>>
>>>
>>>
>>> The ICLA is an individual requirement for you too if you want to
>>> become an Apache contributor.
>>
>>
>> I think I understand both sides of the argument, but it is a rather
>> subtle difference in position and I don't know which one is right.
>> Practically speaking if I sign the ICLA and become a commiter then I
>> want to be able to commit my work. So I think Apache an my agency need
>> to come to some sort of agreement on this issue.
>>
>>>
>>>
>>>
>>> Your lawyers are making a mountain out of a molehill. Is yours the
>>> only US government department that objects to Apache's long-held
>>> contribution requirements? Or do we have a bigger problem with US
>>> government agencies that we need to address more broadly?
>>
>>
>> As far as I can tell these agreements are evaluated on a case by case
>> basis with each Agency/Department free to make their own decisions.
>>
>>>
>>>
>>>
>>> Good luck convincing your department to follow Apache's procedures
>>> and to allow you personally to contribute – with an ICLA. I'm certain
>>> that this will serve the national interest in great **open source**
>>> software regardless of your lawyers' concerns about free **public
>>> domain** code of yours that everyone already has rights to.
>>>
>>>
>>>
>>> I'm more than happy to speak directly with your attorneys without
>>> cluttering this list with legal arguments. I'd like to explain how
>>> Apache and many other FOSS projects have dealt with the "joint work"
>>> issue [17 USC 101] over the years. I might also help them understand
>>> why Open Source Initiative, despite many requests over the years to
>>> do so, has so far refused to certify the "public domain" as an "open
>>> source license." Encourage them to contact me directly if they want to.
>>
>>
>> Great. I feel that cutting out the middle man (me) would help you and
>> Kerry understand each other. I'll send a separate email of introductions.
>>
>> Best Regards,
>> Evan
>>
>>>
>>>
>>>
>>> /Larry
>>>
>>>
>>>
>>> Lawrence Rosen
>>>
>>> Rosenlaw & Einschlag (www.rosenlaw.com <http://www.rosenlaw.com/>)
>>>
>>> 3001 King Ranch Road, Ukiah, CA 95482
>>>
>>> Cell: 707-478-8932 Fax: 707-485-1243
>>>
>>>
>>>
>>> *From:*Evan Ward [mailto:evan.ward@nrl.navy.mil]
>>> *Sent:* Wednesday, May 14, 2014 10:02 AM
>>> *To:* legal-discuss@apache.org
>>> *Subject:* Re: ICLA US Government
>>>
>>>
>>>
>>> Larry,
>>>
>>> I passed along your message to our legal department and I've included
>>> the response below. They can provide a more detailed response
>>> sometime next week, if you would like one. From what I understand
>>> existing Apache code + my contributions can be released under the
>>> Apache license, but the ICLA specifically references my
>>> contributions, which by themselves can only be released in the public
>>> domain.
>>>
>>> Regards,
>>> Evan
>>>
>>> On 05/13/2014 05:51 PM, Kerry Broome wrote:
>>>
>>> Essentially we disagree with how they are interpreting the two
>>> citations. The first citation is a memo about government
>>> employees using open source software. It has nothing to do with
>>> government developed software.
>>>
>>>
>>>
>>> In the second citation, the joint work release specifically says
>>> that “the resulting work is a “joint work” (see 17 USC § 101)
>>> which is partially copyrighted and partially public domain and
>>> “[t]he resulting joint work as a whole is protected by the
>>> copyrights of the non-government authors and may be released
>>> according to the terms of the original open-source license.”
>>> However, the ICLA language says that we are granting a copyright
>>> liscense for our portion to them, which we don’t have and cannot
>>> do. I read that statement as Apache would have copyright over a
>>> version of their software with your code, which is correct, but
>>> we don’t agree with the language of the ICLA on how we transfer
>>> that software to them.
>>>
>>>
>>>
>>> The question above their URL in the FAQ under “Q: Can government
>>> employees develop software and release it under an open source
>>> license?” specifically states our position on this. That is,
>>> “Software developed by US federal government employees (including
>>> military personnel) as part of their official duties is not
>>> subject to copyright protection and is considered “public domain”
>>> (see 17 USC § 105). Public domain software can be used by anyone
>>> for any purpose, and cannot be released under a copyright license
>>> (including typical open source software licenses).” That’s
>>> essentially what we changed with our modified ICLA.
>>>
>>>
>>>
>>> Kerry
>>>
>>>
>>>
>>>
>>>
>>> On 05/06/2014 07:05 PM, Lawrence Rosen wrote:
>>>
>>> Evan Ward <ev...@nrl.navy.mil>
>>> <ma...@nrl.navy.mil> wrote:
>>>
>>>> After a long review by my counsel, going many levels above my
>>> head, the
>>>
>>>> result is still the same: I am not authorized to sign the
>>> Apache ICLA.
>>>
>>>> ...
>>>
>>>> If Apache can accept the public domain ICLA then we can
>>>
>>>> put all this behind us and get back to coding.
>>>
>>>
>>>
>>> Evan, I'm confused by this analysis. Even the Chief Information
>>> Officer of the U.S. Department of the Navy doesn't consider
>>> public domain software a form of open source. See the memorandum
>>> entitled "Department of the Navy Open Source Software Guidance
>>> <http://www.doncio.navy.mil/ContentView.aspx?id=312>". Here is
>>> what it says about public domain:
>>>
>>>
>>>
>>> "Open Source Software: Computer software that includes source
>>> code that can be used and modified by the user; this software has
>>> been copyrighted and includes a license agreement restricting its
>>> use, modification, and distribution. Open Source Software is
>>> software that is copyrighted and licensed under a license
>>> agreement _that is not public domain software_ or freeware. The
>>> Open Source Initiative (OSI) web site (http://opensource.org)
>>> contains more information on open source and open source
>>> licenses." (Emphasis by underlining added.)
>>>
>>>
>>>
>>> More particularly, I also refer your counsel to the DoD Open
>>> Source Software (OSS) FAQ
>>> <http://dodcio.defense.gov/OpenSourceSoftwareFAQ.aspx#Q:_Has_the_U.S._government_released_OSS_projects_or_improvements.3F>,
>>> published by the CIO of the U.S. Department of Defense, which
>>> specifically authorizes government employees to contribute code
>>> to open source software projects under the license(s) used by the
>>> existing project(s). That FAQ explains several ways that the
>>> government's public domain software can be contributed for FOSS,
>>> none of which involve a public domain dedication.
>>>
>>>
>>>
>>> I'm sure the rest of the Apache community will be delighted when
>>> we can, as you say, "put all this behind us and get back to
>>> coding." But it is your lawyers, not ours, who are standing in
>>> the way.
>>>
>>> /Larry
>>>
>>>
>>>
>>>
>>>
>>> -----Original Message-----
>>> From: Evan Ward [mailto:evan.ward@nrl.navy.mil]
>>> Sent: Tuesday, May 6, 2014 12:26 PM
>>> To: legal-discuss@apache.org <ma...@apache.org>
>>> Cc: private@commons.apache.org <ma...@commons.apache.org>
>>> Subject: Re: ICLA US Government
>>>
>>>
>>>
>>> Hi All,
>>>
>>>
>>>
>>> After a long review by my counsel, going many levels above my
>>> head, the
>>>
>>> result is still the same: I am not authorized to sign the Apache
>>> ICLA.
>>>
>>> My agency decided it would not take the NSA's position that the
>>> subtlety
>>>
>>> of it was not worth arguing over ("de minimis non curat lex").
>>>
>>>
>>>
>>> I can still sign the modified ICLA I proposed earlier that puts all
>>>
>>> contributions in the public domain. It seems contradictory that
>>> Apache
>>>
>>> projects can include public domain works, but Apache will not
>>> accept a
>>>
>>> public domain ICLA. If I post my public domain work to GitHub and an
>>>
>>> Apache commiter commits it, then Apache finds that perfectly
>>> acceptable.
>>>
>>> If I sign an agreement with Apache placing all of my work in the
>>> public
>>>
>>> domain and I commit it directly to Apache, then Apache would
>>> reject it!
>>>
>>> Which situation has less risk? If Apache can accept the public domain
>>>
>>> ICLA then we can put all this behind us and get back to coding.
>>>
>>>
>>>
>>> Best Regards,
>>>
>>> Evan
>>>
>>>
>>>
>>>> On Mon 07 Apr 2014 11:28:04 AM EDT, Evan Ward wrote:
>>>>
>>>
>>>> Update: Heard back from Daniel Risacher today. Apparently the
>>> NSA had
>>>
>>>> the same concerns we have, but decided not to argue about subtle
>>>
>>>> differences ("de minimis non curat lex"). Still waiting to hear
>>> if this
>>>
>>>> agency will take the same position.
>>>
>>>
>>>> Best Regards,
>>>
>>>> Evan
>>>
>>>
>>>> On Thu 27 Mar 2014 03:10:55 PM EDT, Doug Cutting wrote:
>>>
>>>
>>>>> On Thu, Mar 27, 2014 at 6:46 AM, Evan Ward
>>> <evan.ward@nrl.navy.mil <ma...@nrl.navy.mil>>
>>>
>>>>> wrote:
>>>
>>>
>>>>>> As Luc, said I can post the contributions to github (or JIRA)
>>> and make
>>>
>>>>>> clear that the project as a whole is under the Apache
>>> License, and my
>>>
>>>>>> patches are in the public domain. Then based on the Apache's
>>> legal FAQ
>>>
>>>>>> and Larry's earlier comments Apache is both able and glad to
>>> accept the
>>>
>>>>>> contributions.
>>>
>>>
>>>
>>>>> If you can do this, then you can sign an ICLA and commit these
>>> changes
>>>
>>>>> directly. When you attach to Jira, intentionally submitting to an
>>>
>>>>> Apache-licensed project, you agree to the same terms as the ICLA.
>>>
>>>>> What makes you think these are different?
>>>
>>>
>>>
>>>>>> As I mentioned before, If someone from Apache wants to talk
>>> directly to
>>>
>>>>>> the people here with the power to make a decision, I can
>>> provide contact
>>>
>>>>>> information.
>>>
>>>
>>>
>>>>> You do not need your employer's permission to sign an ICLA.
>>> You need
>>>
>>>>> your employer's permission to contribute software under the Apache
>>>
>>>>> License. Once you have that permission, whether you choose to
>>> attach
>>>
>>>>> to Jira or sign an ICLA and commit directly makes no legal
>>> difference
>>>
>>>>> to you or to your employer.
>>>
>>>
>>>>> Doug
>>>
>>>
>>> ---------------------------------------------------------------------
>>>
>>>>> To unsubscribe, e-mail: legal-discuss-unsubscribe@apache.org
>>> <ma...@apache.org>
>>>
>>>>> For additional commands, e-mail: legal-discuss-help@apache.org
>>> <ma...@apache.org>
>>>
>>>
>
> ---------------------------------------------------------------------
> To unsubscribe, e-mail: legal-discuss-unsubscribe@apache.org
> For additional commands, e-mail: legal-discuss-help@apache.org
>
---------------------------------------------------------------------
To unsubscribe, e-mail: legal-discuss-unsubscribe@apache.org
For additional commands, e-mail: legal-discuss-help@apache.org
Re: ICLA US Government
Posted by Evan Ward <ev...@nrl.navy.mil>.
So the legal department here has decided that I can sign the Apache ICLA. :)
Just as the NSA Accumulo decision was limited to that particular case,
this decision is limited to my particular case and planned
contributions. I believe there is still interest on this end to find a
more general solution that will allow a greater range of contributions
from the government, if Apache is willing.
Best Regards,
Evan
On Fri 16 May 2014 12:52:42 PM EDT, Evan Ward wrote:
>
>
> On 05/16/2014 12:03 AM, Lawrence Rosen wrote:
>>
>>
>> Evan,
>>
>>
>>
>> Perhaps a sarcastic argument from me will point out the silliness of
>> your refusal to sign an Apache ICLA. Shall Apache users who want your
>> public domain code simply file a Freedom Of Information Act (FOIA)
>> request to get it and ignore the ICLA and your department's approval
>> and your participation altogether?
>>
>>
>>
>> If your software is truly public domain, then we don't actually need
>> you to give us your code. It is ours regardless of what mechanism
>> you use to hand it over to us. [I'm not speaking of government
>> **confidential** code, so don't worry about my reckless grab!]
>>
>>
>>
>> In that sense, your lawyers are right. The ICLA is a frivolity for
>> public domain contributions.
>>
>>
>>
>> But redundant or no, I believe I can describe Apache's mandatory
>> procedures this way: In order for any **individual** to become an
>> Apache contributor, **that person** must sign an ICLA.
>>
>>
>>
>> This is entirely nondiscriminatory, by the way. I am a lawyer and
>> haven't written a line of code in years. Yet I signed an ICLA when I
>> got here just like everybody else. And so my contributions here, such
>> as this email response, are licensed to Apache – and hence to you and
>> to the US government -- under the Apache license. This is true even
>> if my emails quote US law, as I occasionally do here. The fact that
>> US law that I cite happens to be public domain is irrelevant. :-)
>>
>>
>>
>> The ICLA is an individual requirement for you too if you want to
>> become an Apache contributor.
>>
>
>
> I think I understand both sides of the argument, but it is a rather
> subtle difference in position and I don't know which one is right.
> Practically speaking if I sign the ICLA and become a commiter then I
> want to be able to commit my work. So I think Apache an my agency need
> to come to some sort of agreement on this issue.
>
>>
>>
>>
>> Your lawyers are making a mountain out of a molehill. Is yours the
>> only US government department that objects to Apache's long-held
>> contribution requirements? Or do we have a bigger problem with US
>> government agencies that we need to address more broadly?
>>
>
>
> As far as I can tell these agreements are evaluated on a case by case
> basis with each Agency/Department free to make their own decisions.
>
>>
>>
>>
>> Good luck convincing your department to follow Apache's procedures
>> and to allow you personally to contribute – with an ICLA. I'm certain
>> that this will serve the national interest in great **open source**
>> software regardless of your lawyers' concerns about free **public
>> domain** code of yours that everyone already has rights to.
>>
>>
>>
>> I'm more than happy to speak directly with your attorneys without
>> cluttering this list with legal arguments. I'd like to explain how
>> Apache and many other FOSS projects have dealt with the "joint work"
>> issue [17 USC 101] over the years. I might also help them understand
>> why Open Source Initiative, despite many requests over the years to
>> do so, has so far refused to certify the "public domain" as an "open
>> source license." Encourage them to contact me directly if they want to.
>>
>
>
> Great. I feel that cutting out the middle man (me) would help you and
> Kerry understand each other. I'll send a separate email of introductions.
>
> Best Regards,
> Evan
>
>>
>>
>>
>> /Larry
>>
>>
>>
>> Lawrence Rosen
>>
>> Rosenlaw & Einschlag (www.rosenlaw.com <http://www.rosenlaw.com/>)
>>
>> 3001 King Ranch Road, Ukiah, CA 95482
>>
>> Cell: 707-478-8932 Fax: 707-485-1243
>>
>>
>>
>> *From:*Evan Ward [mailto:evan.ward@nrl.navy.mil]
>> *Sent:* Wednesday, May 14, 2014 10:02 AM
>> *To:* legal-discuss@apache.org
>> *Subject:* Re: ICLA US Government
>>
>>
>>
>> Larry,
>>
>> I passed along your message to our legal department and I've included
>> the response below. They can provide a more detailed response
>> sometime next week, if you would like one. From what I understand
>> existing Apache code + my contributions can be released under the
>> Apache license, but the ICLA specifically references my
>> contributions, which by themselves can only be released in the public
>> domain.
>>
>> Regards,
>> Evan
>>
>> On 05/13/2014 05:51 PM, Kerry Broome wrote:
>>
>> Essentially we disagree with how they are interpreting the two
>> citations. The first citation is a memo about government
>> employees using open source software. It has nothing to do with
>> government developed software.
>>
>>
>>
>> In the second citation, the joint work release specifically says
>> that “the resulting work is a “joint work” (see 17 USC § 101)
>> which is partially copyrighted and partially public domain and
>> “[t]he resulting joint work as a whole is protected by the
>> copyrights of the non-government authors and may be released
>> according to the terms of the original open-source license.”
>> However, the ICLA language says that we are granting a copyright
>> liscense for our portion to them, which we don’t have and cannot
>> do. I read that statement as Apache would have copyright over a
>> version of their software with your code, which is correct, but
>> we don’t agree with the language of the ICLA on how we transfer
>> that software to them.
>>
>>
>>
>> The question above their URL in the FAQ under “Q: Can government
>> employees develop software and release it under an open source
>> license?” specifically states our position on this. That is,
>> “Software developed by US federal government employees (including
>> military personnel) as part of their official duties is not
>> subject to copyright protection and is considered “public domain”
>> (see 17 USC § 105). Public domain software can be used by anyone
>> for any purpose, and cannot be released under a copyright license
>> (including typical open source software licenses).” That’s
>> essentially what we changed with our modified ICLA.
>>
>>
>>
>> Kerry
>>
>>
>>
>>
>>
>> On 05/06/2014 07:05 PM, Lawrence Rosen wrote:
>>
>> Evan Ward <ev...@nrl.navy.mil>
>> <ma...@nrl.navy.mil> wrote:
>>
>> > After a long review by my counsel, going many levels above my
>> head, the
>>
>> > result is still the same: I am not authorized to sign the
>> Apache ICLA.
>>
>> > ...
>>
>> > If Apache can accept the public domain ICLA then we can
>>
>> > put all this behind us and get back to coding.
>>
>>
>>
>> Evan, I'm confused by this analysis. Even the Chief Information
>> Officer of the U.S. Department of the Navy doesn't consider
>> public domain software a form of open source. See the memorandum
>> entitled "Department of the Navy Open Source Software Guidance
>> <http://www.doncio.navy.mil/ContentView.aspx?id=312>". Here is
>> what it says about public domain:
>>
>>
>>
>> "Open Source Software: Computer software that includes source
>> code that can be used and modified by the user; this software has
>> been copyrighted and includes a license agreement restricting its
>> use, modification, and distribution. Open Source Software is
>> software that is copyrighted and licensed under a license
>> agreement _that is not public domain software_ or freeware. The
>> Open Source Initiative (OSI) web site (http://opensource.org)
>> contains more information on open source and open source
>> licenses." (Emphasis by underlining added.)
>>
>>
>>
>> More particularly, I also refer your counsel to the DoD Open
>> Source Software (OSS) FAQ
>> <http://dodcio.defense.gov/OpenSourceSoftwareFAQ.aspx#Q:_Has_the_U.S._government_released_OSS_projects_or_improvements.3F>,
>> published by the CIO of the U.S. Department of Defense, which
>> specifically authorizes government employees to contribute code
>> to open source software projects under the license(s) used by the
>> existing project(s). That FAQ explains several ways that the
>> government's public domain software can be contributed for FOSS,
>> none of which involve a public domain dedication.
>>
>>
>>
>> I'm sure the rest of the Apache community will be delighted when
>> we can, as you say, "put all this behind us and get back to
>> coding." But it is your lawyers, not ours, who are standing in
>> the way.
>>
>> /Larry
>>
>>
>>
>>
>>
>> -----Original Message-----
>> From: Evan Ward [mailto:evan.ward@nrl.navy.mil]
>> Sent: Tuesday, May 6, 2014 12:26 PM
>> To: legal-discuss@apache.org <ma...@apache.org>
>> Cc: private@commons.apache.org <ma...@commons.apache.org>
>> Subject: Re: ICLA US Government
>>
>>
>>
>> Hi All,
>>
>>
>>
>> After a long review by my counsel, going many levels above my
>> head, the
>>
>> result is still the same: I am not authorized to sign the Apache
>> ICLA.
>>
>> My agency decided it would not take the NSA's position that the
>> subtlety
>>
>> of it was not worth arguing over ("de minimis non curat lex").
>>
>>
>>
>> I can still sign the modified ICLA I proposed earlier that puts all
>>
>> contributions in the public domain. It seems contradictory that
>> Apache
>>
>> projects can include public domain works, but Apache will not
>> accept a
>>
>> public domain ICLA. If I post my public domain work to GitHub and an
>>
>> Apache commiter commits it, then Apache finds that perfectly
>> acceptable.
>>
>> If I sign an agreement with Apache placing all of my work in the
>> public
>>
>> domain and I commit it directly to Apache, then Apache would
>> reject it!
>>
>> Which situation has less risk? If Apache can accept the public domain
>>
>> ICLA then we can put all this behind us and get back to coding.
>>
>>
>>
>> Best Regards,
>>
>> Evan
>>
>>
>>
>> On Mon 07 Apr 2014 11:28:04 AM EDT, Evan Ward wrote:
>>
>> >
>>
>> > Update: Heard back from Daniel Risacher today. Apparently the
>> NSA had
>>
>> > the same concerns we have, but decided not to argue about subtle
>>
>> > differences ("de minimis non curat lex"). Still waiting to hear
>> if this
>>
>> > agency will take the same position.
>>
>> >
>>
>> > Best Regards,
>>
>> > Evan
>>
>> >
>>
>> > On Thu 27 Mar 2014 03:10:55 PM EDT, Doug Cutting wrote:
>>
>> >>
>>
>> >> On Thu, Mar 27, 2014 at 6:46 AM, Evan Ward
>> <evan.ward@nrl.navy.mil <ma...@nrl.navy.mil>>
>>
>> >> wrote:
>>
>> >>>
>>
>> >>> As Luc, said I can post the contributions to github (or JIRA)
>> and make
>>
>> >>> clear that the project as a whole is under the Apache
>> License, and my
>>
>> >>> patches are in the public domain. Then based on the Apache's
>> legal FAQ
>>
>> >>> and Larry's earlier comments Apache is both able and glad to
>> accept the
>>
>> >>> contributions.
>>
>> >>
>>
>> >>
>>
>> >> If you can do this, then you can sign an ICLA and commit these
>> changes
>>
>> >> directly. When you attach to Jira, intentionally submitting to an
>>
>> >> Apache-licensed project, you agree to the same terms as the ICLA.
>>
>> >> What makes you think these are different?
>>
>> >>
>>
>> >>>
>>
>> >>> As I mentioned before, If someone from Apache wants to talk
>> directly to
>>
>> >>> the people here with the power to make a decision, I can
>> provide contact
>>
>> >>> information.
>>
>> >>
>>
>> >>
>>
>> >> You do not need your employer's permission to sign an ICLA.
>> You need
>>
>> >> your employer's permission to contribute software under the Apache
>>
>> >> License. Once you have that permission, whether you choose to
>> attach
>>
>> >> to Jira or sign an ICLA and commit directly makes no legal
>> difference
>>
>> >> to you or to your employer.
>>
>> >>
>>
>> >> Doug
>>
>> >>
>>
>> >>
>> ---------------------------------------------------------------------
>>
>> >> To unsubscribe, e-mail: legal-discuss-unsubscribe@apache.org
>> <ma...@apache.org>
>>
>> >> For additional commands, e-mail: legal-discuss-help@apache.org
>> <ma...@apache.org>
>>
>> >>
>>
>> >
>>
>>
>>
>>
>>
>
---------------------------------------------------------------------
To unsubscribe, e-mail: legal-discuss-unsubscribe@apache.org
For additional commands, e-mail: legal-discuss-help@apache.org
Re: ICLA US Government
Posted by Evan Ward <ev...@nrl.navy.mil>.
On 05/16/2014 12:03 AM, Lawrence Rosen wrote:
>
> Evan,
>
>
>
> Perhaps a sarcastic argument from me will point out the silliness of
> your refusal to sign an Apache ICLA. Shall Apache users who want your
> public domain code simply file a Freedom Of Information Act (FOIA)
> request to get it and ignore the ICLA and your department's approval
> and your participation altogether?
>
>
>
> If your software is truly public domain, then we don't actually need
> you to give us your code. It is ours regardless of what mechanism you
> use to hand it over to us. [I'm not speaking of government
> **confidential** code, so don't worry about my reckless grab!]
>
>
>
> In that sense, your lawyers are right. The ICLA is a frivolity for
> public domain contributions.
>
>
>
> But redundant or no, I believe I can describe Apache's mandatory
> procedures this way: In order for any **individual** to become an
> Apache contributor, **that person** must sign an ICLA.
>
>
>
> This is entirely nondiscriminatory, by the way. I am a lawyer and
> haven't written a line of code in years. Yet I signed an ICLA when I
> got here just like everybody else. And so my contributions here, such
> as this email response, are licensed to Apache – and hence to you and
> to the US government -- under the Apache license. This is true even if
> my emails quote US law, as I occasionally do here. The fact that US
> law that I cite happens to be public domain is irrelevant. :-)
>
>
>
> The ICLA is an individual requirement for you too if you want to
> become an Apache contributor.
>
I think I understand both sides of the argument, but it is a rather
subtle difference in position and I don't know which one is right.
Practically speaking if I sign the ICLA and become a commiter then I
want to be able to commit my work. So I think Apache an my agency need
to come to some sort of agreement on this issue.
>
>
> Your lawyers are making a mountain out of a molehill. Is yours the
> only US government department that objects to Apache's long-held
> contribution requirements? Or do we have a bigger problem with US
> government agencies that we need to address more broadly?
>
As far as I can tell these agreements are evaluated on a case by case
basis with each Agency/Department free to make their own decisions.
>
>
> Good luck convincing your department to follow Apache's procedures and
> to allow you personally to contribute – with an ICLA. I'm certain that
> this will serve the national interest in great **open source**
> software regardless of your lawyers' concerns about free **public
> domain** code of yours that everyone already has rights to.
>
>
>
> I'm more than happy to speak directly with your attorneys without
> cluttering this list with legal arguments. I'd like to explain how
> Apache and many other FOSS projects have dealt with the "joint work"
> issue [17 USC 101] over the years. I might also help them understand
> why Open Source Initiative, despite many requests over the years to do
> so, has so far refused to certify the "public domain" as an "open
> source license." Encourage them to contact me directly if they want to.
>
Great. I feel that cutting out the middle man (me) would help you and
Kerry understand each other. I'll send a separate email of introductions.
Best Regards,
Evan
>
>
> /Larry
>
>
>
> Lawrence Rosen
>
> Rosenlaw & Einschlag (www.rosenlaw.com <http://www.rosenlaw.com/>)
>
> 3001 King Ranch Road, Ukiah, CA 95482
>
> Cell: 707-478-8932 Fax: 707-485-1243
>
>
>
> *From:*Evan Ward [mailto:evan.ward@nrl.navy.mil]
> *Sent:* Wednesday, May 14, 2014 10:02 AM
> *To:* legal-discuss@apache.org
> *Subject:* Re: ICLA US Government
>
>
>
> Larry,
>
> I passed along your message to our legal department and I've included
> the response below. They can provide a more detailed response sometime
> next week, if you would like one. From what I understand existing
> Apache code + my contributions can be released under the Apache
> license, but the ICLA specifically references my contributions, which
> by themselves can only be released in the public domain.
>
> Regards,
> Evan
>
> On 05/13/2014 05:51 PM, Kerry Broome wrote:
>
> Essentially we disagree with how they are interpreting the two
> citations. The first citation is a memo about government employees
> using open source software. It has nothing to do with government
> developed software.
>
>
>
> In the second citation, the joint work release specifically says
> that “the resulting work is a “joint work” (see 17 USC § 101)
> which is partially copyrighted and partially public domain and
> “[t]he resulting joint work as a whole is protected by the
> copyrights of the non-government authors and may be released
> according to the terms of the original open-source license.”
> However, the ICLA language says that we are granting a copyright
> liscense for our portion to them, which we don’t have and cannot
> do. I read that statement as Apache would have copyright over a
> version of their software with your code, which is correct, but we
> don’t agree with the language of the ICLA on how we transfer that
> software to them.
>
>
>
> The question above their URL in the FAQ under “Q: Can government
> employees develop software and release it under an open source
> license?” specifically states our position on this. That is,
> “Software developed by US federal government employees (including
> military personnel) as part of their official duties is not
> subject to copyright protection and is considered “public domain”
> (see 17 USC § 105). Public domain software can be used by anyone
> for any purpose, and cannot be released under a copyright license
> (including typical open source software licenses).” That’s
> essentially what we changed with our modified ICLA.
>
>
>
> Kerry
>
>
>
>
>
> On 05/06/2014 07:05 PM, Lawrence Rosen wrote:
>
> Evan Ward <ev...@nrl.navy.mil> <ma...@nrl.navy.mil>
> wrote:
>
> > After a long review by my counsel, going many levels above my
> head, the
>
> > result is still the same: I am not authorized to sign the Apache
> ICLA.
>
> > ...
>
> > If Apache can accept the public domain ICLA then we can
>
> > put all this behind us and get back to coding.
>
>
>
> Evan, I'm confused by this analysis. Even the Chief Information
> Officer of the U.S. Department of the Navy doesn't consider public
> domain software a form of open source. See the memorandum entitled
> "Department of the Navy Open Source Software Guidance
> <http://www.doncio.navy.mil/ContentView.aspx?id=312>". Here is
> what it says about public domain:
>
>
>
> "Open Source Software: Computer software that includes source code
> that can be used and modified by the user; this software has been
> copyrighted and includes a license agreement restricting its use,
> modification, and distribution. Open Source Software is software
> that is copyrighted and licensed under a license agreement _that
> is not public domain software_ or freeware. The Open Source
> Initiative (OSI) web site (http://opensource.org) contains more
> information on open source and open source licenses." (Emphasis by
> underlining added.)
>
>
>
> More particularly, I also refer your counsel to the DoD Open
> Source Software (OSS) FAQ
> <http://dodcio.defense.gov/OpenSourceSoftwareFAQ.aspx#Q:_Has_the_U.S._government_released_OSS_projects_or_improvements.3F>,
> published by the CIO of the U.S. Department of Defense, which
> specifically authorizes government employees to contribute code to
> open source software projects under the license(s) used by the
> existing project(s). That FAQ explains several ways that the
> government's public domain software can be contributed for FOSS,
> none of which involve a public domain dedication.
>
>
>
> I'm sure the rest of the Apache community will be delighted when
> we can, as you say, "put all this behind us and get back to
> coding." But it is your lawyers, not ours, who are standing in the
> way.
>
> /Larry
>
>
>
>
>
> -----Original Message-----
> From: Evan Ward [mailto:evan.ward@nrl.navy.mil]
> Sent: Tuesday, May 6, 2014 12:26 PM
> To: legal-discuss@apache.org <ma...@apache.org>
> Cc: private@commons.apache.org <ma...@commons.apache.org>
> Subject: Re: ICLA US Government
>
>
>
> Hi All,
>
>
>
> After a long review by my counsel, going many levels above my
> head, the
>
> result is still the same: I am not authorized to sign the Apache ICLA.
>
> My agency decided it would not take the NSA's position that the
> subtlety
>
> of it was not worth arguing over ("de minimis non curat lex").
>
>
>
> I can still sign the modified ICLA I proposed earlier that puts all
>
> contributions in the public domain. It seems contradictory that Apache
>
> projects can include public domain works, but Apache will not accept a
>
> public domain ICLA. If I post my public domain work to GitHub and an
>
> Apache commiter commits it, then Apache finds that perfectly
> acceptable.
>
> If I sign an agreement with Apache placing all of my work in the
> public
>
> domain and I commit it directly to Apache, then Apache would
> reject it!
>
> Which situation has less risk? If Apache can accept the public domain
>
> ICLA then we can put all this behind us and get back to coding.
>
>
>
> Best Regards,
>
> Evan
>
>
>
> On Mon 07 Apr 2014 11:28:04 AM EDT, Evan Ward wrote:
>
> >
>
> > Update: Heard back from Daniel Risacher today. Apparently the
> NSA had
>
> > the same concerns we have, but decided not to argue about subtle
>
> > differences ("de minimis non curat lex"). Still waiting to hear
> if this
>
> > agency will take the same position.
>
> >
>
> > Best Regards,
>
> > Evan
>
> >
>
> > On Thu 27 Mar 2014 03:10:55 PM EDT, Doug Cutting wrote:
>
> >>
>
> >> On Thu, Mar 27, 2014 at 6:46 AM, Evan Ward
> <evan.ward@nrl.navy.mil <ma...@nrl.navy.mil>>
>
> >> wrote:
>
> >>>
>
> >>> As Luc, said I can post the contributions to github (or JIRA)
> and make
>
> >>> clear that the project as a whole is under the Apache License,
> and my
>
> >>> patches are in the public domain. Then based on the Apache's
> legal FAQ
>
> >>> and Larry's earlier comments Apache is both able and glad to
> accept the
>
> >>> contributions.
>
> >>
>
> >>
>
> >> If you can do this, then you can sign an ICLA and commit these
> changes
>
> >> directly. When you attach to Jira, intentionally submitting to an
>
> >> Apache-licensed project, you agree to the same terms as the ICLA.
>
> >> What makes you think these are different?
>
> >>
>
> >>>
>
> >>> As I mentioned before, If someone from Apache wants to talk
> directly to
>
> >>> the people here with the power to make a decision, I can
> provide contact
>
> >>> information.
>
> >>
>
> >>
>
> >> You do not need your employer's permission to sign an ICLA. You
> need
>
> >> your employer's permission to contribute software under the Apache
>
> >> License. Once you have that permission, whether you choose to
> attach
>
> >> to Jira or sign an ICLA and commit directly makes no legal
> difference
>
> >> to you or to your employer.
>
> >>
>
> >> Doug
>
> >>
>
> >>
> ---------------------------------------------------------------------
>
> >> To unsubscribe, e-mail: legal-discuss-unsubscribe@apache.org
> <ma...@apache.org>
>
> >> For additional commands, e-mail: legal-discuss-help@apache.org
> <ma...@apache.org>
>
> >>
>
> >
>
>
>
>
>
RE: ICLA US Government
Posted by Lawrence Rosen <lr...@rosenlaw.com>.
Evan,
Perhaps a sarcastic argument from me will point out the silliness of your refusal to sign an Apache ICLA. Shall Apache users who want your public domain code simply file a Freedom Of Information Act (FOIA) request to get it and ignore the ICLA and your department's approval and your participation altogether?
If your software is truly public domain, then we don't actually need you to give us your code. It is ours regardless of what mechanism you use to hand it over to us. [I'm not speaking of government *confidential* code, so don't worry about my reckless grab!]
In that sense, your lawyers are right. The ICLA is a frivolity for public domain contributions.
But redundant or no, I believe I can describe Apache's mandatory procedures this way: In order for any *individual* to become an Apache contributor, *that person* must sign an ICLA.
This is entirely nondiscriminatory, by the way. I am a lawyer and haven't written a line of code in years. Yet I signed an ICLA when I got here just like everybody else. And so my contributions here, such as this email response, are licensed to Apache – and hence to you and to the US government -- under the Apache license. This is true even if my emails quote US law, as I occasionally do here. The fact that US law that I cite happens to be public domain is irrelevant. :-)
The ICLA is an individual requirement for you too if you want to become an Apache contributor.
Your lawyers are making a mountain out of a molehill. Is yours the only US government department that objects to Apache's long-held contribution requirements? Or do we have a bigger problem with US government agencies that we need to address more broadly?
Good luck convincing your department to follow Apache's procedures and to allow you personally to contribute – with an ICLA. I'm certain that this will serve the national interest in great *open source* software regardless of your lawyers' concerns about free *public domain* code of yours that everyone already has rights to.
I'm more than happy to speak directly with your attorneys without cluttering this list with legal arguments. I'd like to explain how Apache and many other FOSS projects have dealt with the "joint work" issue [17 USC 101] over the years. I might also help them understand why Open Source Initiative, despite many requests over the years to do so, has so far refused to certify the "public domain" as an "open source license." Encourage them to contact me directly if they want to.
/Larry
Lawrence Rosen
Rosenlaw & Einschlag ( <http://www.rosenlaw.com/> www.rosenlaw.com)
3001 King Ranch Road, Ukiah, CA 95482
Cell: 707-478-8932 Fax: 707-485-1243
From: Evan Ward [mailto:evan.ward@nrl.navy.mil]
Sent: Wednesday, May 14, 2014 10:02 AM
To: legal-discuss@apache.org
Subject: Re: ICLA US Government
Larry,
I passed along your message to our legal department and I've included the response below. They can provide a more detailed response sometime next week, if you would like one. From what I understand existing Apache code + my contributions can be released under the Apache license, but the ICLA specifically references my contributions, which by themselves can only be released in the public domain.
Regards,
Evan
On 05/13/2014 05:51 PM, Kerry Broome wrote:
Essentially we disagree with how they are interpreting the two citations. The first citation is a memo about government employees using open source software. It has nothing to do with government developed software.
In the second citation, the joint work release specifically says that “the resulting work is a “joint work” (see 17 USC § 101) which is partially copyrighted and partially public domain and “[t]he resulting joint work as a whole is protected by the copyrights of the non-government authors and may be released according to the terms of the original open-source license.” However, the ICLA language says that we are granting a copyright liscense for our portion to them, which we don’t have and cannot do. I read that statement as Apache would have copyright over a version of their software with your code, which is correct, but we don’t agree with the language of the ICLA on how we transfer that software to them.
The question above their URL in the FAQ under “Q: Can government employees develop software and release it under an open source license?” specifically states our position on this. That is, “Software developed by US federal government employees (including military personnel) as part of their official duties is not subject to copyright protection and is considered “public domain” (see 17 USC § 105). Public domain software can be used by anyone for any purpose, and cannot be released under a copyright license (including typical open source software licenses).” That’s essentially what we changed with our modified ICLA.
Kerry
On 05/06/2014 07:05 PM, Lawrence Rosen wrote:
Evan Ward <ma...@nrl.navy.mil> <ev...@nrl.navy.mil> wrote:
> After a long review by my counsel, going many levels above my head, the
> result is still the same: I am not authorized to sign the Apache ICLA.
> ...
> If Apache can accept the public domain ICLA then we can
> put all this behind us and get back to coding.
Evan, I'm confused by this analysis. Even the Chief Information Officer of the U.S. Department of the Navy doesn't consider public domain software a form of open source. See the memorandum entitled "Department of the Navy Open Source Software Guidance <http://www.doncio.navy.mil/ContentView.aspx?id=312> ". Here is what it says about public domain:
"Open Source Software: Computer software that includes source code that can be used and modified by the user; this software has been copyrighted and includes a license agreement restricting its use, modification, and distribution. Open Source Software is software that is copyrighted and licensed under a license agreement that is not public domain software or freeware. The Open Source Initiative (OSI) web site (http://opensource.org) contains more information on open source and open source licenses." (Emphasis by underlining added.)
More particularly, I also refer your counsel to the DoD Open Source Software (OSS) FAQ <http://dodcio.defense.gov/OpenSourceSoftwareFAQ.aspx#Q:_Has_the_U.S._government_released_OSS_projects_or_improvements.3F> , published by the CIO of the U.S. Department of Defense, which specifically authorizes government employees to contribute code to open source software projects under the license(s) used by the existing project(s). That FAQ explains several ways that the government's public domain software can be contributed for FOSS, none of which involve a public domain dedication.
I'm sure the rest of the Apache community will be delighted when we can, as you say, "put all this behind us and get back to coding." But it is your lawyers, not ours, who are standing in the way.
/Larry
-----Original Message-----
From: Evan Ward [mailto:evan.ward@nrl.navy.mil]
Sent: Tuesday, May 6, 2014 12:26 PM
To: legal-discuss@apache.org <ma...@apache.org>
Cc: private@commons.apache.org <ma...@commons.apache.org>
Subject: Re: ICLA US Government
Hi All,
After a long review by my counsel, going many levels above my head, the
result is still the same: I am not authorized to sign the Apache ICLA.
My agency decided it would not take the NSA's position that the subtlety
of it was not worth arguing over ("de minimis non curat lex").
I can still sign the modified ICLA I proposed earlier that puts all
contributions in the public domain. It seems contradictory that Apache
projects can include public domain works, but Apache will not accept a
public domain ICLA. If I post my public domain work to GitHub and an
Apache commiter commits it, then Apache finds that perfectly acceptable.
If I sign an agreement with Apache placing all of my work in the public
domain and I commit it directly to Apache, then Apache would reject it!
Which situation has less risk? If Apache can accept the public domain
ICLA then we can put all this behind us and get back to coding.
Best Regards,
Evan
On Mon 07 Apr 2014 11:28:04 AM EDT, Evan Ward wrote:
>
> Update: Heard back from Daniel Risacher today. Apparently the NSA had
> the same concerns we have, but decided not to argue about subtle
> differences ("de minimis non curat lex"). Still waiting to hear if this
> agency will take the same position.
>
> Best Regards,
> Evan
>
> On Thu 27 Mar 2014 03:10:55 PM EDT, Doug Cutting wrote:
>>
>> On Thu, Mar 27, 2014 at 6:46 AM, Evan Ward < <ma...@nrl.navy.mil> evan.ward@nrl.navy.mil>
>> wrote:
>>>
>>> As Luc, said I can post the contributions to github (or JIRA) and make
>>> clear that the project as a whole is under the Apache License, and my
>>> patches are in the public domain. Then based on the Apache's legal FAQ
>>> and Larry's earlier comments Apache is both able and glad to accept the
>>> contributions.
>>
>>
>> If you can do this, then you can sign an ICLA and commit these changes
>> directly. When you attach to Jira, intentionally submitting to an
>> Apache-licensed project, you agree to the same terms as the ICLA.
>> What makes you think these are different?
>>
>>>
>>> As I mentioned before, If someone from Apache wants to talk directly to
>>> the people here with the power to make a decision, I can provide contact
>>> information.
>>
>>
>> You do not need your employer's permission to sign an ICLA. You need
>> your employer's permission to contribute software under the Apache
>> License. Once you have that permission, whether you choose to attach
>> to Jira or sign an ICLA and commit directly makes no legal difference
>> to you or to your employer.
>>
>> Doug
>>
>> ---------------------------------------------------------------------
>> To unsubscribe, e-mail: <ma...@apache.org> legal-discuss-unsubscribe@apache.org
>> For additional commands, e-mail: <ma...@apache.org> legal-discuss-help@apache.org
>>
>
Re: ICLA US Government
Posted by Evan Ward <ev...@nrl.navy.mil>.
Larry,
I passed along your message to our legal department and I've included
the response below. They can provide a more detailed response sometime
next week, if you would like one. From what I understand existing Apache
code + my contributions can be released under the Apache license, but
the ICLA specifically references my contributions, which by themselves
can only be released in the public domain.
Regards,
Evan
On 05/13/2014 05:51 PM, Kerry Broome wrote:
> Essentially we disagree with how they are interpreting the two
> citations. The first citation is a memo about government employees
> using open source software. It has nothing to do with government
> developed software.
>
>
>
> In the second citation, the joint work release specifically says that
> “the resulting work is a “joint work” (see 17 USC § 101) which is
> partially copyrighted and partially public domain and “[t]he resulting
> joint work as a whole is protected by the copyrights of the
> non-government authors and may be released according to the terms of
> the original open-source license.” However, the ICLA language says
> that we are granting a copyright liscense for our portion to them,
> which we don’t have and cannot do. I read that statement as Apache
> would have copyright over a version of their software with your code,
> which is correct, but we don’t agree with the language of the ICLA on
> how we transfer that software to them.
>
>
>
> The question above their URL in the FAQ under “Q: Can government
> employees develop software and release it under an open source
> license?” specifically states our position on this. That is, “Software
> developed by US federal government employees (including military
> personnel) as part of their official duties is not subject to
> copyright protection and is considered “public domain” (see 17 USC §
> 105). Public domain software can be used by anyone for any purpose,
> and cannot be released under a copyright license (including typical
> open source software licenses).” That’s essentially what we changed
> with our modified ICLA.
>
>
>
> Kerry
>
>
>
On 05/06/2014 07:05 PM, Lawrence Rosen wrote:
>
> Evan Ward <ev...@nrl.navy.mil> wrote:
>
> > After a long review by my counsel, going many levels above my head, the
>
> > result is still the same: I am not authorized to sign the Apache ICLA.
>
> > ...
>
> > If Apache can accept the public domain ICLA then we can
>
> > put all this behind us and get back to coding.
>
>
>
> Evan, I'm confused by this analysis. Even the Chief Information
> Officer of the U.S. Department of the Navy doesn't consider public
> domain software a form of open source. See the memorandum entitled
> "Department of the Navy Open Source Software Guidance
> <http://www.doncio.navy.mil/ContentView.aspx?id=312>". Here is what it
> says about public domain:
>
>
>
> "Open Source Software: Computer software that includes source code
> that can be used and modified by the user; this software has been
> copyrighted and includes a license agreement restricting its use,
> modification, and distribution. Open Source Software is software that
> is copyrighted and licensed under a license agreement _that is not
> public domain software_ or freeware. The Open Source Initiative (OSI)
> web site (http://opensource.org) contains more information on open
> source and open source licenses." (Emphasis by underlining added.)
>
>
>
> More particularly, I also refer your counsel to the DoD Open Source
> Software (OSS) FAQ
> <http://dodcio.defense.gov/OpenSourceSoftwareFAQ.aspx#Q:_Has_the_U.S._government_released_OSS_projects_or_improvements.3F>,
> published by the CIO of the U.S. Department of Defense, which
> specifically authorizes government employees to contribute code to
> open source software projects under the license(s) used by the
> existing project(s). That FAQ explains several ways that the
> government's public domain software can be contributed for FOSS, none
> of which involve a public domain dedication.
>
>
>
> I'm sure the rest of the Apache community will be delighted when we
> can, as you say, "put all this behind us and get back to coding." But
> it is your lawyers, not ours, who are standing in the way.
>
> /Larry
>
>
>
>
>
> -----Original Message-----
> From: Evan Ward [mailto:evan.ward@nrl.navy.mil]
> Sent: Tuesday, May 6, 2014 12:26 PM
> To: legal-discuss@apache.org
> Cc: private@commons.apache.org
> Subject: Re: ICLA US Government
>
>
>
> Hi All,
>
>
>
> After a long review by my counsel, going many levels above my head, the
>
> result is still the same: I am not authorized to sign the Apache ICLA.
>
> My agency decided it would not take the NSA's position that the subtlety
>
> of it was not worth arguing over ("de minimis non curat lex").
>
>
>
> I can still sign the modified ICLA I proposed earlier that puts all
>
> contributions in the public domain. It seems contradictory that Apache
>
> projects can include public domain works, but Apache will not accept a
>
> public domain ICLA. If I post my public domain work to GitHub and an
>
> Apache commiter commits it, then Apache finds that perfectly acceptable.
>
> If I sign an agreement with Apache placing all of my work in the public
>
> domain and I commit it directly to Apache, then Apache would reject it!
>
> Which situation has less risk? If Apache can accept the public domain
>
> ICLA then we can put all this behind us and get back to coding.
>
>
>
> Best Regards,
>
> Evan
>
>
>
> On Mon 07 Apr 2014 11:28:04 AM EDT, Evan Ward wrote:
>
> >
>
> > Update: Heard back from Daniel Risacher today. Apparently the NSA had
>
> > the same concerns we have, but decided not to argue about subtle
>
> > differences ("de minimis non curat lex"). Still waiting to hear if this
>
> > agency will take the same position.
>
> >
>
> > Best Regards,
>
> > Evan
>
> >
>
> > On Thu 27 Mar 2014 03:10:55 PM EDT, Doug Cutting wrote:
>
> >>
>
> >> On Thu, Mar 27, 2014 at 6:46 AM, Evan Ward <evan.ward@nrl.navy.mil
> <ma...@nrl.navy.mil>>
>
> >> wrote:
>
> >>>
>
> >>> As Luc, said I can post the contributions to github (or JIRA) and make
>
> >>> clear that the project as a whole is under the Apache License, and my
>
> >>> patches are in the public domain. Then based on the Apache's legal FAQ
>
> >>> and Larry's earlier comments Apache is both able and glad to
> accept the
>
> >>> contributions.
>
> >>
>
> >>
>
> >> If you can do this, then you can sign an ICLA and commit these changes
>
> >> directly. When you attach to Jira, intentionally submitting to an
>
> >> Apache-licensed project, you agree to the same terms as the ICLA.
>
> >> What makes you think these are different?
>
> >>
>
> >>>
>
> >>> As I mentioned before, If someone from Apache wants to talk
> directly to
>
> >>> the people here with the power to make a decision, I can provide
> contact
>
> >>> information.
>
> >>
>
> >>
>
> >> You do not need your employer's permission to sign an ICLA. You need
>
> >> your employer's permission to contribute software under the Apache
>
> >> License. Once you have that permission, whether you choose to attach
>
> >> to Jira or sign an ICLA and commit directly makes no legal difference
>
> >> to you or to your employer.
>
> >>
>
> >> Doug
>
> >>
>
> >> ---------------------------------------------------------------------
>
> >> To unsubscribe, e-mail: legal-discuss-unsubscribe@apache.org
> <ma...@apache.org>
>
> >> For additional commands, e-mail: legal-discuss-help@apache.org
> <ma...@apache.org>
>
> >>
>
> >
>
>
>
Re: ICLA US Government
Posted by Jim Jagielski <ji...@jaguNET.com>.
++1. Agreed.
On May 6, 2014, at 7:05 PM, Lawrence Rosen <lr...@rosenlaw.com> wrote:
> Evan Ward <ev...@nrl.navy.mil> wrote:
> > After a long review by my counsel, going many levels above my head, the
> > result is still the same: I am not authorized to sign the Apache ICLA.
> > ...
> > If Apache can accept the public domain ICLA then we can
> > put all this behind us and get back to coding.
>
> Evan, I'm confused by this analysis. Even the Chief Information Officer of the U.S. Department of the Navy doesn't consider public domain software a form of open source. See the memorandum entitled "Department of the Navy Open Source Software Guidance". Here is what it says about public domain:
>
> "Open Source Software: Computer software that includes source code that can be used and modified by the user; this software has been copyrighted and includes a license agreement restricting its use, modification, and distribution. Open Source Software is software that is copyrighted and licensed under a license agreement that is not public domain software or freeware. The Open Source Initiative (OSI) web site (http://opensource.org) contains more information on open source and open source licenses." (Emphasis by underlining added.)
>
> More particularly, I also refer your counsel to the DoD Open Source Software (OSS) FAQ, published by the CIO of the U.S. Department of Defense, which specifically authorizes government employees to contribute code to open source software projects under the license(s) used by the existing project(s). That FAQ explains several ways that the government's public domain software can be contributed for FOSS, none of which involve a public domain dedication.
>
> I'm sure the rest of the Apache community will be delighted when we can, as you say, "put all this behind us and get back to coding." But it is your lawyers, not ours, who are standing in the way.
> /Larry
>
>
> -----Original Message-----
> From: Evan Ward [mailto:evan.ward@nrl.navy.mil]
> Sent: Tuesday, May 6, 2014 12:26 PM
> To: legal-discuss@apache.org
> Cc: private@commons.apache.org
> Subject: Re: ICLA US Government
>
> Hi All,
>
> After a long review by my counsel, going many levels above my head, the
> result is still the same: I am not authorized to sign the Apache ICLA.
> My agency decided it would not take the NSA's position that the subtlety
> of it was not worth arguing over ("de minimis non curat lex").
>
> I can still sign the modified ICLA I proposed earlier that puts all
> contributions in the public domain. It seems contradictory that Apache
> projects can include public domain works, but Apache will not accept a
> public domain ICLA. If I post my public domain work to GitHub and an
> Apache commiter commits it, then Apache finds that perfectly acceptable.
> If I sign an agreement with Apache placing all of my work in the public
> domain and I commit it directly to Apache, then Apache would reject it!
> Which situation has less risk? If Apache can accept the public domain
> ICLA then we can put all this behind us and get back to coding.
>
> Best Regards,
> Evan
>
> On Mon 07 Apr 2014 11:28:04 AM EDT, Evan Ward wrote:
> >
> > Update: Heard back from Daniel Risacher today. Apparently the NSA had
> > the same concerns we have, but decided not to argue about subtle
> > differences ("de minimis non curat lex"). Still waiting to hear if this
> > agency will take the same position.
> >
> > Best Regards,
> > Evan
> >
> > On Thu 27 Mar 2014 03:10:55 PM EDT, Doug Cutting wrote:
> >>
> >> On Thu, Mar 27, 2014 at 6:46 AM, Evan Ward <ev...@nrl.navy.mil>
> >> wrote:
> >>>
> >>> As Luc, said I can post the contributions to github (or JIRA) and make
> >>> clear that the project as a whole is under the Apache License, and my
> >>> patches are in the public domain. Then based on the Apache's legal FAQ
> >>> and Larry's earlier comments Apache is both able and glad to accept the
> >>> contributions.
> >>
> >>
> >> If you can do this, then you can sign an ICLA and commit these changes
> >> directly. When you attach to Jira, intentionally submitting to an
> >> Apache-licensed project, you agree to the same terms as the ICLA.
> >> What makes you think these are different?
> >>
> >>>
> >>> As I mentioned before, If someone from Apache wants to talk directly to
> >>> the people here with the power to make a decision, I can provide contact
> >>> information.
> >>
> >>
> >> You do not need your employer's permission to sign an ICLA. You need
> >> your employer's permission to contribute software under the Apache
> >> License. Once you have that permission, whether you choose to attach
> >> to Jira or sign an ICLA and commit directly makes no legal difference
> >> to you or to your employer.
> >>
> >> Doug
> >>
> >> ---------------------------------------------------------------------
> >> To unsubscribe, e-mail: legal-discuss-unsubscribe@apache.org
> >> For additional commands, e-mail: legal-discuss-help@apache.org
> >>
> >
---------------------------------------------------------------------
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For additional commands, e-mail: legal-discuss-help@apache.org
RE: ICLA US Government
Posted by Lawrence Rosen <lr...@rosenlaw.com>.
Evan Ward <ev...@nrl.navy.mil> wrote:
> After a long review by my counsel, going many levels above my head, the
> result is still the same: I am not authorized to sign the Apache ICLA.
> ...
> If Apache can accept the public domain ICLA then we can
> put all this behind us and get back to coding.
Evan, I'm confused by this analysis. Even the Chief Information Officer of the U.S. Department of the Navy doesn't consider public domain software a form of open source. See the memorandum entitled "Department of the Navy Open Source Software Guidance <http://www.doncio.navy.mil/ContentView.aspx?id=312> ". Here is what it says about public domain:
"Open Source Software: Computer software that includes source code that can be used and modified by the user; this software has been copyrighted and includes a license agreement restricting its use, modification, and distribution. Open Source Software is software that is copyrighted and licensed under a license agreement that is not public domain software or freeware. The Open Source Initiative (OSI) web site (http://opensource.org) contains more information on open source and open source licenses." (Emphasis by underlining added.)
More particularly, I also refer your counsel to the DoD Open Source Software (OSS) FAQ <http://dodcio.defense.gov/OpenSourceSoftwareFAQ.aspx#Q:_Has_the_U.S._government_released_OSS_projects_or_improvements.3F> , published by the CIO of the U.S. Department of Defense, which specifically authorizes government employees to contribute code to open source software projects under the license(s) used by the existing project(s). That FAQ explains several ways that the government's public domain software can be contributed for FOSS, none of which involve a public domain dedication.
I'm sure the rest of the Apache community will be delighted when we can, as you say, "put all this behind us and get back to coding." But it is your lawyers, not ours, who are standing in the way.
/Larry
-----Original Message-----
From: Evan Ward [mailto:evan.ward@nrl.navy.mil]
Sent: Tuesday, May 6, 2014 12:26 PM
To: legal-discuss@apache.org
Cc: private@commons.apache.org
Subject: Re: ICLA US Government
Hi All,
After a long review by my counsel, going many levels above my head, the
result is still the same: I am not authorized to sign the Apache ICLA.
My agency decided it would not take the NSA's position that the subtlety
of it was not worth arguing over ("de minimis non curat lex").
I can still sign the modified ICLA I proposed earlier that puts all
contributions in the public domain. It seems contradictory that Apache
projects can include public domain works, but Apache will not accept a
public domain ICLA. If I post my public domain work to GitHub and an
Apache commiter commits it, then Apache finds that perfectly acceptable.
If I sign an agreement with Apache placing all of my work in the public
domain and I commit it directly to Apache, then Apache would reject it!
Which situation has less risk? If Apache can accept the public domain
ICLA then we can put all this behind us and get back to coding.
Best Regards,
Evan
On Mon 07 Apr 2014 11:28:04 AM EDT, Evan Ward wrote:
>
> Update: Heard back from Daniel Risacher today. Apparently the NSA had
> the same concerns we have, but decided not to argue about subtle
> differences ("de minimis non curat lex"). Still waiting to hear if this
> agency will take the same position.
>
> Best Regards,
> Evan
>
> On Thu 27 Mar 2014 03:10:55 PM EDT, Doug Cutting wrote:
>>
>> On Thu, Mar 27, 2014 at 6:46 AM, Evan Ward < <ma...@nrl.navy.mil> evan.ward@nrl.navy.mil>
>> wrote:
>>>
>>> As Luc, said I can post the contributions to github (or JIRA) and make
>>> clear that the project as a whole is under the Apache License, and my
>>> patches are in the public domain. Then based on the Apache's legal FAQ
>>> and Larry's earlier comments Apache is both able and glad to accept the
>>> contributions.
>>
>>
>> If you can do this, then you can sign an ICLA and commit these changes
>> directly. When you attach to Jira, intentionally submitting to an
>> Apache-licensed project, you agree to the same terms as the ICLA.
>> What makes you think these are different?
>>
>>>
>>> As I mentioned before, If someone from Apache wants to talk directly to
>>> the people here with the power to make a decision, I can provide contact
>>> information.
>>
>>
>> You do not need your employer's permission to sign an ICLA. You need
>> your employer's permission to contribute software under the Apache
>> License. Once you have that permission, whether you choose to attach
>> to Jira or sign an ICLA and commit directly makes no legal difference
>> to you or to your employer.
>>
>> Doug
>>
>> ---------------------------------------------------------------------
>> To unsubscribe, e-mail: <ma...@apache.org> legal-discuss-unsubscribe@apache.org
>> For additional commands, e-mail: <ma...@apache.org> legal-discuss-help@apache.org
>>
>
Re: ICLA US Government
Posted by Doug Cutting <cu...@apache.org>.
On Tue, May 6, 2014 at 12:26 PM, Evan Ward <ev...@nrl.navy.mil> wrote:
> I am not authorized to sign the Apache ICLA.
You need no authorization from anyone else to sign an ICLA, as that
agreement mentions only you and the ASF.
The question is whether your employer permits you to contribute,
whether under an ICLA or under section 5 of the license makes no
difference, the terms are the same.
Doug
---------------------------------------------------------------------
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Re: ICLA US Government
Posted by Evan Ward <ev...@nrl.navy.mil>.
Hi All,
After a long review by my counsel, going many levels above my head, the
result is still the same: I am not authorized to sign the Apache ICLA.
My agency decided it would not take the NSA's position that the subtlety
of it was not worth arguing over ("de minimis non curat lex").
I can still sign the modified ICLA I proposed earlier that puts all
contributions in the public domain. It seems contradictory that Apache
projects can include public domain works, but Apache will not accept a
public domain ICLA. If I post my public domain work to GitHub and an
Apache commiter commits it, then Apache finds that perfectly acceptable.
If I sign an agreement with Apache placing all of my work in the public
domain and I commit it directly to Apache, then Apache would reject it!
Which situation has less risk? If Apache can accept the public domain
ICLA then we can put all this behind us and get back to coding.
Best Regards,
Evan
On Mon 07 Apr 2014 11:28:04 AM EDT, Evan Ward wrote:
>
> Update: Heard back from Daniel Risacher today. Apparently the NSA had
> the same concerns we have, but decided not to argue about subtle
> differences ("de minimis non curat lex"). Still waiting to hear if this
> agency will take the same position.
>
> Best Regards,
> Evan
>
> On Thu 27 Mar 2014 03:10:55 PM EDT, Doug Cutting wrote:
>>
>> On Thu, Mar 27, 2014 at 6:46 AM, Evan Ward <ev...@nrl.navy.mil>
>> wrote:
>>>
>>> As Luc, said I can post the contributions to github (or JIRA) and make
>>> clear that the project as a whole is under the Apache License, and my
>>> patches are in the public domain. Then based on the Apache's legal FAQ
>>> and Larry's earlier comments Apache is both able and glad to accept the
>>> contributions.
>>
>>
>> If you can do this, then you can sign an ICLA and commit these changes
>> directly. When you attach to Jira, intentionally submitting to an
>> Apache-licensed project, you agree to the same terms as the ICLA.
>> What makes you think these are different?
>>
>>>
>>> As I mentioned before, If someone from Apache wants to talk directly to
>>> the people here with the power to make a decision, I can provide contact
>>> information.
>>
>>
>> You do not need your employer's permission to sign an ICLA. You need
>> your employer's permission to contribute software under the Apache
>> License. Once you have that permission, whether you choose to attach
>> to Jira or sign an ICLA and commit directly makes no legal difference
>> to you or to your employer.
>>
>> Doug
>>
>> ---------------------------------------------------------------------
>> To unsubscribe, e-mail: legal-discuss-unsubscribe@apache.org
>> For additional commands, e-mail: legal-discuss-help@apache.org
>>
>