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Posted to legal-discuss@apache.org by "Karan, Cem F CIV USARMY RDECOM ARL (US)" <ce...@mail.mil> on 2017/01/06 14:33:32 UTC
RE: [Non-DoD Source] Re: Suggested license mod or FAQ
Hi, my name is Cem Karan, and I'm one of those Government employees that Chris
was talking about. Is it also possible to clarify the definition of Licensor
in clause 1? As a Government employee, my works are in the public domain, so
there is no copyright holder. I'd hate to have one of my contributions cause
headaches because of that.
Thanks,
Cem Karan
> -----Original Message-----
> From: Christopher Tubbs [mailto:ctubbsii@apache.org]
> Sent: Wednesday, January 04, 2017 7:29 PM
> To: legal-discuss@apache.org
> Subject: [Non-DoD Source] Re: Suggested license mod or FAQ
>
> Interesting... apparently, I'm not subscribed to the list, so I never saw
> the reply.
>
> In any case, I'm not talking about contributing public domain contributions
> to an ASF project... I'm talking about the applicability of the
> AL2 license to any project which uses it.
>
> After some more interactions with lawyer types and others, I've come to
> learn that what I'm talking about is explicitly adding a type of
> Severability Clause[1], which ensures that the LICENSE is not void in its
> entirety due to the inapplicability of a portion of the LICENSE to a
> specific subset of the project.
>
> Before I had learned about this, I had assumed that individual inapplicable
> clauses could be ignored, and the rest would remain intact, but
> now... I've learned that isn't necessarily the case.
>
> For more details, and an example of why this might be useful to all users
> (developers and project consumers) of the Apache License, see
> Caution-https://github.com/presidential-innovation-fellows/code-gov-web/issues/41#issuecomment-270469794
>
> In short, U.S. Government (USG) developers, managers, and sometimes
> lawyers, are so very confused and lost while trying to release
> government-produced software to the public, as there is no consistent
> guidance, or good license for them to use which applies. I don't
> think ASF should be in the business of creating a suitable licenses for USG,
> but the conversation on those forums has got me thinking that
> this simple change to AL2 would alleviate many concerns, and would also be
> mutually beneficial to any project, including ASF projects,
> which use AL2.
>
> [1]: Caution-https://en.wikipedia.org/wiki/Severability
>
> On 2016-12-22 04:21 (-0500), Henri Yandell <ba...@apache.org> wrote:
> > What would the FAQ say? Both question and answer :)
> >
> > IIRC this is something that's come up on list a good few times; so a
> > FAQ seems justifiable (though you should review the previous questions).
> >
> > I think one way to look at is that, if you (an individual not an
> > entity like a government or corporation) are contributing something
> > that is not your original creation, you have to call that out per
> > section 7 of the ICLA. Thus if you work for the US government and your
> > contribution is public domain'd, you should call that out on each
> > contribution per section 7. So no issue with the ICLA if that way to
> > look at it is valid, but a mild pain for each commit message.
> >
> > Hen
> >
> >
> > On Wed, Dec 21, 2016 at 2:14 PM, Christopher <ct...@apache.org> wrote:
> >
> > > Hi all,
> > >
> > > The following is just something I was thinking about recently
> > > watching all the activity around the U.S. Government and open
> > > source. (see code.gov and related GitHub activities)
> > >
> > > There still seem to be a lot of questions about how open source
> > > licenses pertain to Federal Employees coding on behalf of
> > > government, and domestic copyright.
> > >
> > > For comparison, the Fedora Project Contributor Agreement seems to
> > > have a very useful note in paragraph 4
> > > (Caution-https://fedoraproject.org/
> > > wiki/Legal:Fedora_Project_Contributor_Agreement) about US Gov copyright.
> > >
> > > I'm not a lawyer, but as far as I can tell, this isn't a *necessary*
> > > clause.... it seems to me that any non-applicable clause of a
> > > license would simply be non-applicable, whether it is stated
> > > explicitly or not, and any copyright license restrictions cannot be
> > > binding for something which is public domain. However, it does seem
> > > to be *useful* to have such a clause, to answer questions from
> > > confused government types who want to pick a license for their open
> > > source projects, and which may have a mix of government and other
> > > contributions.
> > >
> > > So, *if* there were ever an 'Apache License, 2.1', I think it'd be
> > > worth considering adding a similar clause, either specifically
> > > addressing 17 U.S.C. 105 public domain, or something less US-centric
> > > which still clearly addresses that case.
> > >
> > > In the meantime, it might be useful to note something about this on
> > > the license FAQs
> > > (Caution-http://www.apache.org/foundation/license-faq.html).
> > >
> > > What do you think?
> > >
> > > --
> > > Christopher
> > >
> >
>
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RE: [Non-DoD Source] Suggested license mod or FAQ
Posted by "Karan, Cem F CIV USARMY RDECOM ARL (US)" <ce...@mail.mil>.
OK, so the mixing in of contractor material is probably what allows the use of
the ASL for the work as a whole. That said, both you and Ted have given me a
good place to start my inquiries at. Thank you! I'll get our lawyers talking
to the NSA lawyers ASAP.
Thanks,
Cem Karan
> -----Original Message-----
> From: Joe Witt [mailto:joe.witt@gmail.com]
> Sent: Tuesday, January 24, 2017 2:01 PM
> To: legal-discuss@apache.org
> Subject: Re: [Non-DoD Source] Suggested license mod or FAQ
>
> All active links contained in this email were disabled. Please verify the
> identity of the sender, and confirm the authenticity of all links
> contained within the message prior to copying and pasting the address to a
> Web browser.
>
>
>
>
> ----
>
> Cem,
>
> Please note that NiFi, similar to Accumulo was open sourced by the NSA. The
> proposal for NiFi spells out what the lawyers/tech transfer
> office provided regarding this matter and I believe it is consistent with
> Accumulo as well.
>
> It reads
>
> "== Source and Intellectual Property Submission == Previously referred to as
> Niagarafiles, the NiFi code and documentation materials will
> be submitted by the National Security Agency. NiFi has been developed by a
> mix of government employees and private companies under
> government contract. Material developed by the government employees is in
> the public domain and no U.S. copyright exists in works of
> the federal government. For the contractor developed material in the initial
> submission, the U.S. Government has sufficient authority to
> open source per DFARS 252.227-7014. NSA has submitted the Software Grant
> Agreement and Corporate Contributor License Agreement
> to the Apache Software Foundation."
>
> Thanks
> Joe
>
> On Tue, Jan 24, 2017 at 1:55 PM, Karan, Cem F CIV USARMY RDECOM ARL
> (US) <ce...@mail.mil> wrote:
> >> -----Original Message-----
> >> From: Ted Dunning [Caution-mailto:ted.dunning@gmail.com]
> >> Sent: Tuesday, January 24, 2017 12:58 PM
> >> To: legal-discuss@apache.org
> >> Subject: Re: [Non-DoD Source] Suggested license mod or FAQ
> >>
> >> On Tue, Jan 24, 2017 at 5:57 AM, Karan, Cem F CIV USARMY RDECOM ARL
> >> (US) <cem.f.karan.civ@mail.mil < Caution-
> >> Caution-mailto:cem.f.karan.civ@mail.mil > > wrote:
> >>
> >>
> >> Can you
> >> please point out which agencies are doing this, and on which
> >> projects?
> >>
> >>
> >> Accumulo was developed in-house by the NSA.
> >
> > No contractor involvement at all?
> >
> > Thanks,
> > Cem Karan
> >
>
> ---------------------------------------------------------------------
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Re: [Non-DoD Source] Suggested license mod or FAQ
Posted by Ted Dunning <te...@gmail.com>.
Cem,
I have spoken with our general counsel here at MapR. He is *very* well
versed in copyright (he did all the key licenses at Sun, for instance). His
interpretation matches mine and others that public domain material can be
contributed precisely because there is no copyright, that derived works
formed by changes to public domain elements can be contributed because the
derived work does have a copyright to be licensed and anything that has a
license that allows contribution can be contributed.
He is willing to have a short conversation with one or more of your
attorneys on the topic if you like. If you do want to make that happen,
please contact me off-line. My Apache email works well for that (tdunning
at apache and so on).
On Tue, Jan 24, 2017 at 1:26 PM, Karan, Cem F CIV USARMY RDECOM ARL (US) <
cem.f.karan.civ@mail.mil> wrote:
> OK, I'll get in contact with the folks at the NSA to see what their lawyers
> decided. If any of you already have contacts there, could you send me the
> relevant contacts directly? It'll save me some digging.
>
> Thanks,
> Cem Karan
>
> > -----Original Message-----
> > From: Ted Dunning [mailto:ted.dunning@gmail.com]
> > Sent: Tuesday, January 24, 2017 2:37 PM
> > To: legal-discuss@apache.org
> > Subject: Re: [Non-DoD Source] Suggested license mod or FAQ
> >
> > All active links contained in this email were disabled. Please verify the
> > identity of the sender, and confirm the authenticity of all links
> > contained within the message prior to copying and pasting the address to
> a
> > Web browser.
> >
> >
> > ________________________________
> >
> >
> >
> >
> > I am sure that Booz Allen was involved on some level, but I am also sure
> > that significant fractions of the effort were done internally.
> >
> >
> >
> > On Tue, Jan 24, 2017 at 11:01 AM, Joe Witt <joe.witt@gmail.com <
> > Caution-mailto:joe.witt@gmail.com > > wrote:
> >
> >
> > Cem,
> >
> > Please note that NiFi, similar to Accumulo was open sourced by the
> > NSA. The proposal for NiFi spells out what the lawyers/tech
> transfer
> > office provided regarding this matter and I believe it is
> consistent
> > with Accumulo as well.
> >
> > It reads
> >
> > "== Source and Intellectual Property Submission ==
> > Previously referred to as Niagarafiles, the NiFi code and
> > documentation materials will be submitted by the National Security
> > Agency. NiFi has been developed by a mix of government employees
> and
> > private companies under government contract. Material developed by
> the
> > government employees is in the public domain and no U.S. copyright
> > exists in works of the federal government. For the contractor
> > developed material in the initial submission, the U.S. Government
> has
> > sufficient authority to open source per DFARS 252.227-7014 <
> > tel:252.227-7014 > . NSA has
> > submitted the Software Grant Agreement and Corporate Contributor
> > License Agreement to the Apache Software Foundation."
> >
> > Thanks
> > Joe
> >
> >
> > On Tue, Jan 24, 2017 at 1:55 PM, Karan, Cem F CIV USARMY RDECOM ARL
> > (US) <cem.f.karan.civ@mail.mil < Caution-mailto:cem.f.karan.
> civ@mail.mil >
> > > wrote:
> > >> -----Original Message-----
> > >> From: Ted Dunning [Caution-mailto:ted.dunning@gmail.com <
> > Caution-mailto:ted.dunning@gmail.com > ]
> > >> Sent: Tuesday, January 24, 2017 12:58 PM
> > >> To: legal-discuss@apache.org < Caution-mailto:legal-discuss@
> apache.org >
> > >> Subject: Re: [Non-DoD Source] Suggested license mod or FAQ
> > >>
> > >> On Tue, Jan 24, 2017 at 5:57 AM, Karan, Cem F CIV USARMY RDECOM
> ARL (US)
> > >> <cem.f.karan.civ@mail.mil < Caution-mailto:cem.f.karan.
> civ@mail.mil > <
> > Caution-
> > >> Caution-mailto:cem.f.karan.civ@mail.mil <
> > Caution-mailto:cem.f.karan.civ@mail.mil > > > wrote:
> > >>
> > >>
> > >> Can you
> > >> please point out which agencies are doing this, and on
> which
> > projects?
> > >>
> > >>
> > >> Accumulo was developed in-house by the NSA.
> > >
> > > No contractor involvement at all?
> > >
> > > Thanks,
> > > Cem Karan
> > >
> >
> >
> > ------------------------------------------------------------
> ---------
> > To unsubscribe, e-mail: legal-discuss-unsubscribe@apache.org <
> > Caution-mailto:legal-discuss-unsubscribe@apache.org >
> > For additional commands, e-mail: legal-discuss-help@apache.org <
> > Caution-mailto:legal-discuss-help@apache.org >
> >
> >
> >
>
>
RE: [Non-DoD Source] Suggested license mod or FAQ
Posted by "Karan, Cem F CIV USARMY RDECOM ARL (US)" <ce...@mail.mil>.
OK, I'll get in contact with the folks at the NSA to see what their lawyers
decided. If any of you already have contacts there, could you send me the
relevant contacts directly? It'll save me some digging.
Thanks,
Cem Karan
> -----Original Message-----
> From: Ted Dunning [mailto:ted.dunning@gmail.com]
> Sent: Tuesday, January 24, 2017 2:37 PM
> To: legal-discuss@apache.org
> Subject: Re: [Non-DoD Source] Suggested license mod or FAQ
>
> All active links contained in this email were disabled. Please verify the
> identity of the sender, and confirm the authenticity of all links
> contained within the message prior to copying and pasting the address to a
> Web browser.
>
>
> ________________________________
>
>
>
>
> I am sure that Booz Allen was involved on some level, but I am also sure
> that significant fractions of the effort were done internally.
>
>
>
> On Tue, Jan 24, 2017 at 11:01 AM, Joe Witt <joe.witt@gmail.com <
> Caution-mailto:joe.witt@gmail.com > > wrote:
>
>
> Cem,
>
> Please note that NiFi, similar to Accumulo was open sourced by the
> NSA. The proposal for NiFi spells out what the lawyers/tech transfer
> office provided regarding this matter and I believe it is consistent
> with Accumulo as well.
>
> It reads
>
> "== Source and Intellectual Property Submission ==
> Previously referred to as Niagarafiles, the NiFi code and
> documentation materials will be submitted by the National Security
> Agency. NiFi has been developed by a mix of government employees and
> private companies under government contract. Material developed by the
> government employees is in the public domain and no U.S. copyright
> exists in works of the federal government. For the contractor
> developed material in the initial submission, the U.S. Government has
> sufficient authority to open source per DFARS 252.227-7014 <
> tel:252.227-7014 > . NSA has
> submitted the Software Grant Agreement and Corporate Contributor
> License Agreement to the Apache Software Foundation."
>
> Thanks
> Joe
>
>
> On Tue, Jan 24, 2017 at 1:55 PM, Karan, Cem F CIV USARMY RDECOM ARL
> (US) <cem.f.karan.civ@mail.mil < Caution-mailto:cem.f.karan.civ@mail.mil >
> > wrote:
> >> -----Original Message-----
> >> From: Ted Dunning [Caution-mailto:ted.dunning@gmail.com <
> Caution-mailto:ted.dunning@gmail.com > ]
> >> Sent: Tuesday, January 24, 2017 12:58 PM
> >> To: legal-discuss@apache.org < Caution-mailto:legal-discuss@apache.org >
> >> Subject: Re: [Non-DoD Source] Suggested license mod or FAQ
> >>
> >> On Tue, Jan 24, 2017 at 5:57 AM, Karan, Cem F CIV USARMY RDECOM ARL (US)
> >> <cem.f.karan.civ@mail.mil < Caution-mailto:cem.f.karan.civ@mail.mil > <
> Caution-
> >> Caution-mailto:cem.f.karan.civ@mail.mil <
> Caution-mailto:cem.f.karan.civ@mail.mil > > > wrote:
> >>
> >>
> >> Can you
> >> please point out which agencies are doing this, and on which
> projects?
> >>
> >>
> >> Accumulo was developed in-house by the NSA.
> >
> > No contractor involvement at all?
> >
> > Thanks,
> > Cem Karan
> >
>
>
> ---------------------------------------------------------------------
> To unsubscribe, e-mail: legal-discuss-unsubscribe@apache.org <
> Caution-mailto:legal-discuss-unsubscribe@apache.org >
> For additional commands, e-mail: legal-discuss-help@apache.org <
> Caution-mailto:legal-discuss-help@apache.org >
>
>
>
Re: [Non-DoD Source] Suggested license mod or FAQ
Posted by Ted Dunning <te...@gmail.com>.
I am sure that Booz Allen was involved on some level, but I am also sure
that significant fractions of the effort were done internally.
On Tue, Jan 24, 2017 at 11:01 AM, Joe Witt <jo...@gmail.com> wrote:
> Cem,
>
> Please note that NiFi, similar to Accumulo was open sourced by the
> NSA. The proposal for NiFi spells out what the lawyers/tech transfer
> office provided regarding this matter and I believe it is consistent
> with Accumulo as well.
>
> It reads
>
> "== Source and Intellectual Property Submission ==
> Previously referred to as Niagarafiles, the NiFi code and
> documentation materials will be submitted by the National Security
> Agency. NiFi has been developed by a mix of government employees and
> private companies under government contract. Material developed by the
> government employees is in the public domain and no U.S. copyright
> exists in works of the federal government. For the contractor
> developed material in the initial submission, the U.S. Government has
> sufficient authority to open source per DFARS 252.227-7014. NSA has
> submitted the Software Grant Agreement and Corporate Contributor
> License Agreement to the Apache Software Foundation."
>
> Thanks
> Joe
>
> On Tue, Jan 24, 2017 at 1:55 PM, Karan, Cem F CIV USARMY RDECOM ARL
> (US) <ce...@mail.mil> wrote:
> >> -----Original Message-----
> >> From: Ted Dunning [mailto:ted.dunning@gmail.com]
> >> Sent: Tuesday, January 24, 2017 12:58 PM
> >> To: legal-discuss@apache.org
> >> Subject: Re: [Non-DoD Source] Suggested license mod or FAQ
> >>
> >> On Tue, Jan 24, 2017 at 5:57 AM, Karan, Cem F CIV USARMY RDECOM ARL (US)
> >> <cem.f.karan.civ@mail.mil < Caution-
> >> mailto:cem.f.karan.civ@mail.mil > > wrote:
> >>
> >>
> >> Can you
> >> please point out which agencies are doing this, and on which
> projects?
> >>
> >>
> >> Accumulo was developed in-house by the NSA.
> >
> > No contractor involvement at all?
> >
> > Thanks,
> > Cem Karan
> >
>
> ---------------------------------------------------------------------
> To unsubscribe, e-mail: legal-discuss-unsubscribe@apache.org
> For additional commands, e-mail: legal-discuss-help@apache.org
>
>
Re: [Non-DoD Source] Suggested license mod or FAQ
Posted by Joe Witt <jo...@gmail.com>.
Cem,
Please note that NiFi, similar to Accumulo was open sourced by the
NSA. The proposal for NiFi spells out what the lawyers/tech transfer
office provided regarding this matter and I believe it is consistent
with Accumulo as well.
It reads
"== Source and Intellectual Property Submission ==
Previously referred to as Niagarafiles, the NiFi code and
documentation materials will be submitted by the National Security
Agency. NiFi has been developed by a mix of government employees and
private companies under government contract. Material developed by the
government employees is in the public domain and no U.S. copyright
exists in works of the federal government. For the contractor
developed material in the initial submission, the U.S. Government has
sufficient authority to open source per DFARS 252.227-7014. NSA has
submitted the Software Grant Agreement and Corporate Contributor
License Agreement to the Apache Software Foundation."
Thanks
Joe
On Tue, Jan 24, 2017 at 1:55 PM, Karan, Cem F CIV USARMY RDECOM ARL
(US) <ce...@mail.mil> wrote:
>> -----Original Message-----
>> From: Ted Dunning [mailto:ted.dunning@gmail.com]
>> Sent: Tuesday, January 24, 2017 12:58 PM
>> To: legal-discuss@apache.org
>> Subject: Re: [Non-DoD Source] Suggested license mod or FAQ
>>
>> On Tue, Jan 24, 2017 at 5:57 AM, Karan, Cem F CIV USARMY RDECOM ARL (US)
>> <cem.f.karan.civ@mail.mil < Caution-
>> mailto:cem.f.karan.civ@mail.mil > > wrote:
>>
>>
>> Can you
>> please point out which agencies are doing this, and on which projects?
>>
>>
>> Accumulo was developed in-house by the NSA.
>
> No contractor involvement at all?
>
> Thanks,
> Cem Karan
>
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RE: [Non-DoD Source] Suggested license mod or FAQ
Posted by "Karan, Cem F CIV USARMY RDECOM ARL (US)" <ce...@mail.mil>.
> -----Original Message-----
> From: Ted Dunning [mailto:ted.dunning@gmail.com]
> Sent: Tuesday, January 24, 2017 12:58 PM
> To: legal-discuss@apache.org
> Subject: Re: [Non-DoD Source] Suggested license mod or FAQ
>
> On Tue, Jan 24, 2017 at 5:57 AM, Karan, Cem F CIV USARMY RDECOM ARL (US)
> <cem.f.karan.civ@mail.mil < Caution-
> mailto:cem.f.karan.civ@mail.mil > > wrote:
>
>
> Can you
> please point out which agencies are doing this, and on which projects?
>
>
> Accumulo was developed in-house by the NSA.
No contractor involvement at all?
Thanks,
Cem Karan
Re: [Non-DoD Source] Suggested license mod or FAQ
Posted by Ted Dunning <te...@gmail.com>.
On Tue, Jan 24, 2017 at 5:57 AM, Karan, Cem F CIV USARMY RDECOM ARL (US) <
cem.f.karan.civ@mail.mil> wrote:
> Can you
> please point out which agencies are doing this, and on which projects?
>
Accumulo was developed in-house by the NSA.
RE: [Non-DoD Source] Suggested license mod or FAQ
Posted by "Karan, Cem F CIV USARMY RDECOM ARL (US)" <ce...@mail.mil>.
> -----Original Message-----
> From: Roy T. Fielding [mailto:fielding@gbiv.com]
> Sent: Monday, January 23, 2017 11:27 PM
> To: legal-discuss@apache.org
> Subject: Re: [Non-DoD Source] Suggested license mod or FAQ
>
> On Jan 24, 2017, at 12:35 AM, Karan, Cem F CIV USARMY RDECOM ARL (US)
> <ce...@mail.mil> wrote:
>
> >> -----Original Message-----
> >> From: Roy T. Fielding [mailto:fielding@gbiv.com]
> >> Sent: Wednesday, January 18, 2017 10:14 PM
> >> To: legal-discuss@apache.org
> >> Subject: Re: [Non-DoD Source] Suggested license mod or FAQ
> >>
> >>> On Jan 6, 2017, at 6:33 AM, Karan, Cem F CIV USARMY RDECOM ARL (US)
> >>> <ce...@mail.mil> wrote:
> >>>
> >>> Hi, my name is Cem Karan, and I'm one of those Government employees
> >>> that Chris was talking about. Is it also possible to clarify the
> >>> definition of Licensor in clause 1? As a Government employee, my
> >>> works are in the public domain, so there is no copyright holder.
> >>> I'd hate to have one of my contributions cause headaches because of
> >>> that.
> >>>
> >>> Thanks,
> >>> Cem Karan
> >>
> >> FWIW, I don't know why government lawyers can't read the civil code
> >>
> >> Caution-https://www.copyright.gov/title17/92chap1.html#105
> >>
> >> and figure out that "Copyright protection under this title is not
> >> available for any work of the United States Government" is not the
> >> same as saying government employees are incapable of owning copyright.
> >> The work they are paid to do on behalf of USG (or related to their
> >> government job) is in the public domain. The rest of their work (the
> >> boundaries of which we have no means to assess) might or might not be
> >> in the public domain.
> >
> > Our lawyers are well aware of the difference. The problem *IS* the
> > work that civil servants produce in the course of their work. See next
> > comment below.
> >
> >> Regardless, it isn't possible for one of your contributions to cause
> >> us headaches when it is entirely in the public domain. By
> >> definition, that means nobody has the standing in which to cause such
> >> a headache, nobody can successfully file suit (at least under
> >> copyright), and thus no court case can proceed.
> >>
> >> The danger for headaches comes from other people who might claim
> >> (truly or
> >> not) to own the copyright in spite of the work's origin.
> >> There's not much we can do in the license about that.
> >
> > And this is the crux of the problem. What happens when a work that is
> > in the public domain is licensed under ASL?
>
> Nothing.
>
> > Since the ASL relies on copyright, a
> > reasonable person might think that the work itself has copyright.
> > What happens when someone finds out that it doesn't?
>
> Still nothing.
>
> > Can a smart lawyer
> > successfully argue that since the clauses that rely on copyright are
> > invalid for works that are in the public domain then the entire
> > license is invalid for that work[1]?
>
> They aren't invalid. They permit things that might otherwise be constrained.
> The permission does not depend on the constraints existing.
> The permissions don't disappear if there are no constraints.
>
> Regardless, severability does not apply to unilateral licenses. It is not a
> contract.
>
> > I'm thinking in particular about clauses 7&8
> > (https://www.apache.org/licenses/LICENSE-2.0), but to some degree the
> > patent clause as well.
> >
> >> There are no plans to make any further changes to the Apache License.
> >> As mentioned previously, a person concerned about the applicability
> >> of the license to a public domain work can simply add that "the
> >> license's copyright terms only apply to the extent that copyright is
> >> actually owned or licensable by the Contributors". That statement
> >> can be placed anywhere you like outside the license itself.
> >
> > So in addition to the ASL, there will be a separate notice containing
> > the above, and possibly a notice beyond that regarding warranty,
> > liability, and patent issues... it sounds like public domain code will
> > have to live under the equivalent of dual licensing, where the ASL
> > would apply to material that had copyright, and some
> > separate-but-essentially-identical notice for the public domain code
> > to cover the non-copyright issues that the ASL already covers,
> > correct? Is it possible to write such a notice/license that is
> > interoperable with the ASL?
>
> No, all of those are things you can do if you imagine they are necessary in
> some context. I will never need those things, nor will anyone
> else whose lawyer has a reasonable understanding of software licensing and
> liability.
>
> >> The reason that isn't said in the license is because the copyright
> >> terms merely provide a permission that isn't needed without copyright.
> >> It is completely irrelevant whether they apply to any given piece of
> >> work in the public domain.
> >>
> >> ....Roy
> >
> > I see your point. Do you understand mine?
> >
> > Thanks,
> > Cem Karan
> >
> > [1] I am *not* saying that the license is invalid for works with
> > copyright! I am only considering the case where a work doesn't have
> > copyright.
>
> I understand your point. However, this is not a debate. Our government does
> release code under the Apache License while saying the parts
> they created are in the public domain, and encourages its employees to
> contribute to upstream projects based on the expectation that
> such public domain work will be incorporated under the same license as the
> surrounding code. This is not and has never been an issue.
When you say 'our government', I assume you mean the US Government. Can you
please point out which agencies are doing this, and on which projects? I need
to find out if the code was original code produced exclusively by civil
servants. If it was, I want to put our lawyers in contact with that agency's
lawyers to see what their legal theories are. Right now, my lab's lawyers
have concerns about using *any* copyright-based license that may be able to be
assuaged by other Government lawyers.
Thanks,
Cem Karan
Re: [Non-DoD Source] Suggested license mod or FAQ
Posted by "Roy T. Fielding" <fi...@gbiv.com>.
On Jan 24, 2017, at 12:35 AM, Karan, Cem F CIV USARMY RDECOM ARL (US) <ce...@mail.mil> wrote:
>> -----Original Message-----
>> From: Roy T. Fielding [mailto:fielding@gbiv.com]
>> Sent: Wednesday, January 18, 2017 10:14 PM
>> To: legal-discuss@apache.org
>> Subject: Re: [Non-DoD Source] Suggested license mod or FAQ
>>
>>> On Jan 6, 2017, at 6:33 AM, Karan, Cem F CIV USARMY RDECOM ARL (US)
>>> <ce...@mail.mil> wrote:
>>>
>>> Hi, my name is Cem Karan, and I'm one of those Government employees
>>> that Chris was talking about. Is it also possible to clarify the
>>> definition of Licensor in clause 1? As a Government employee, my
>>> works are in the public domain, so there is no copyright holder. I'd
>>> hate to have one of my contributions cause headaches because of that.
>>>
>>> Thanks,
>>> Cem Karan
>>
>> FWIW, I don't know why government lawyers can't read the civil code
>>
>> Caution-https://www.copyright.gov/title17/92chap1.html#105
>>
>> and figure out that "Copyright protection under this title is not available
>> for any work of the United States Government" is not the same
>> as saying government employees are incapable of owning copyright.
>> The work they are paid to do on behalf of USG (or related to their
>> government job) is in the public domain. The rest of their work (the
>> boundaries of which we have no means to assess) might or might not be in the
>> public domain.
>
> Our lawyers are well aware of the difference. The problem *IS* the work that
> civil servants produce in the course of their work. See next comment below.
>
>> Regardless, it isn't possible for one of your contributions to cause us
>> headaches when it is entirely in the public domain. By definition, that
>> means nobody has the standing in which to cause such a headache, nobody can
>> successfully file suit (at least under copyright), and thus no
>> court case can proceed.
>>
>> The danger for headaches comes from other people who might claim (truly or
>> not) to own the copyright in spite of the work's origin.
>> There's not much we can do in the license about that.
>
> And this is the crux of the problem. What happens when a work that is in the
> public domain is licensed under ASL?
Nothing.
> Since the ASL relies on copyright, a
> reasonable person might think that the work itself has copyright. What
> happens when someone finds out that it doesn't?
Still nothing.
> Can a smart lawyer
> successfully argue that since the clauses that rely on copyright are invalid
> for works that are in the public domain then the entire license is invalid for
> that work[1]?
They aren't invalid. They permit things that might otherwise be constrained. The permission does not depend on the constraints existing. The permissions don't disappear if there are no constraints.
Regardless, severability does not apply to unilateral licenses. It is not a contract.
> I'm thinking in particular about clauses 7&8
> (https://www.apache.org/licenses/LICENSE-2.0), but to some degree the patent
> clause as well.
>
>> There are no plans to make any further changes to the Apache License.
>> As mentioned previously, a person concerned about the applicability of the
>> license to a public domain work can simply add that "the
>> license's copyright terms only apply to the extent that copyright is
>> actually owned or licensable by the Contributors". That statement can
>> be placed anywhere you like outside the license itself.
>
> So in addition to the ASL, there will be a separate notice containing the
> above, and possibly a notice beyond that regarding warranty, liability, and
> patent issues... it sounds like public domain code will have to live under the
> equivalent of dual licensing, where the ASL would apply to material that had
> copyright, and some separate-but-essentially-identical notice for the public
> domain code to cover the non-copyright issues that the ASL already covers,
> correct? Is it possible to write such a notice/license that is interoperable
> with the ASL?
No, all of those are things you can do if you imagine they are necessary in some context. I will never need those things, nor will anyone else whose lawyer has a reasonable understanding of software licensing and liability.
>> The reason that isn't said in the license is because the copyright terms
>> merely provide a permission that isn't needed without copyright.
>> It is completely irrelevant whether they apply to any given piece of work in
>> the public domain.
>>
>> ....Roy
>
> I see your point. Do you understand mine?
>
> Thanks,
> Cem Karan
>
> [1] I am *not* saying that the license is invalid for works with copyright! I
> am only considering the case where a work doesn't have copyright.
I understand your point. However, this is not a debate. Our government does release code under the Apache License while saying the parts they created are in the public domain, and encourages its employees to contribute to upstream projects based on the expectation that such public domain work will be incorporated under the same license as the surrounding code. This is not and has never been an issue.
....Roy
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RE: [Non-DoD Source] Suggested license mod or FAQ
Posted by "Karan, Cem F CIV USARMY RDECOM ARL (US)" <ce...@mail.mil>.
> -----Original Message-----
> From: Ted Dunning [mailto:ted.dunning@gmail.com]
> Sent: Monday, January 23, 2017 11:22 AM
> To: legal-discuss@apache.org
> Subject: Re: [Non-DoD Source] Suggested license mod or FAQ
>
> On Mon, Jan 23, 2017 at 7:35 AM, Karan, Cem F CIV USARMY RDECOM ARL (US)
> <cem.f.karan.civ@mail.mil < Caution-
> mailto:cem.f.karan.civ@mail.mil > > wrote:
>
>
> > Regardless, it isn't possible for one of your contributions to cause us
> > headaches when it is entirely in the public domain. By definition, that
> > means nobody has the standing in which to cause such a headache, nobody
> can
> > successfully file suit (at least under copyright), and thus no
> > court case can proceed.
> >
> > The danger for headaches comes from other people who might claim (truly
> or
> > not) to own the copyright in spite of the work's origin.
> > There's not much we can do in the license about that.
>
> And this is the crux of the problem. What happens when a work that is in
> the
> public domain is licensed under ASL? Since the ASL relies on copyright, a
> reasonable person might think that the work itself has copyright. What
> happens when someone finds out that it doesn't? Can a smart lawyer
> successfully argue that since the clauses that rely on copyright are
> invalid
> for works that are in the public domain then the entire license is invalid
> for
> that work[1]? I'm thinking in particular about clauses 7&8
> (Caution-https://www.apache.org/licenses/LICENSE-2.0 <
> Caution-https://www.apache.org/licenses/LICENSE-2.0 > ), but to some
> degree the patent
> clause as well.
>
>
>
> No.
>
> The work is a derived work that *includes* a bit of public domain stuff. As
> long as the public domain part has not been modified, the
> original license applies. As soon as it is modified, then that is a
> derivative work subject to copyright. The situation is the same as if I
> include a USGS image (public domain, no copyright) in a book I write. The
> book has a copyright, the image doesn't. I don't gain ownership
> over the image. Public domain is not viral. (and yes, I just went through
> this more formally)
>
> I, at least, understand your point and your concerns.
>
> But there is no danger to the Apache license of the entire work because some
> part of the content has no copyright. Further, the ICLA
> covers this situation because it asserts that the contributor either owns or
> has the rights to contribute their contributions. They obviously
> have the right to contribute public domain material, as does anybody.
>
> Would it make your lawyers happier if we put a special header on public
> domain materials? That header could say that their original form
> is in the public domain, but any additions may be covered by the Apache
> license?
Thank you Ted, you've answered my concerns. I don't think our lawyers would
be worried about a special header, but I can ask. I'll pass along what you've
said to them as well; I think that they'll agree with you, but I want to make
sure.
Thanks,
Cem Karan
Re: [Non-DoD Source] Suggested license mod or FAQ
Posted by Ted Dunning <te...@gmail.com>.
On Mon, Jan 23, 2017 at 7:35 AM, Karan, Cem F CIV USARMY RDECOM ARL (US) <
cem.f.karan.civ@mail.mil> wrote:
> > Regardless, it isn't possible for one of your contributions to cause us
> > headaches when it is entirely in the public domain. By definition, that
> > means nobody has the standing in which to cause such a headache, nobody
> can
> > successfully file suit (at least under copyright), and thus no
> > court case can proceed.
> >
> > The danger for headaches comes from other people who might claim (truly
> or
> > not) to own the copyright in spite of the work's origin.
> > There's not much we can do in the license about that.
>
> And this is the crux of the problem. What happens when a work that is in
> the
> public domain is licensed under ASL? Since the ASL relies on copyright, a
> reasonable person might think that the work itself has copyright. What
> happens when someone finds out that it doesn't? Can a smart lawyer
> successfully argue that since the clauses that rely on copyright are
> invalid
> for works that are in the public domain then the entire license is invalid
> for
> that work[1]? I'm thinking in particular about clauses 7&8
> (https://www.apache.org/licenses/LICENSE-2.0), but to some degree the
> patent
> clause as well.
>
No.
The work is a derived work that *includes* a bit of public domain stuff. As
long as the public domain part has not been modified, the original license
applies. As soon as it is modified, then that is a derivative work subject
to copyright. The situation is the same as if I include a USGS image
(public domain, no copyright) in a book I write. The book has a copyright,
the image doesn't. I don't gain ownership over the image. Public domain is
not viral. (and yes, I just went through this more formally)
I, at least, understand your point and your concerns.
But there is no danger to the Apache license of the entire work because
some part of the content has no copyright. Further, the ICLA covers this
situation because it asserts that the contributor either owns or has the
rights to contribute their contributions. They obviously have the right to
contribute public domain material, as does anybody.
Would it make your lawyers happier if we put a special header on public
domain materials? That header could say that their original form is in the
public domain, but any additions may be covered by the Apache license?
RE: [Non-DoD Source] Suggested license mod or FAQ
Posted by "Karan, Cem F CIV USARMY RDECOM ARL (US)" <ce...@mail.mil>.
> -----Original Message-----
> From: Roy T. Fielding [mailto:fielding@gbiv.com]
> Sent: Wednesday, January 18, 2017 10:14 PM
> To: legal-discuss@apache.org
> Subject: Re: [Non-DoD Source] Suggested license mod or FAQ
>
> > On Jan 6, 2017, at 6:33 AM, Karan, Cem F CIV USARMY RDECOM ARL (US)
> > <ce...@mail.mil> wrote:
> >
> > Hi, my name is Cem Karan, and I'm one of those Government employees
> > that Chris was talking about. Is it also possible to clarify the
> > definition of Licensor in clause 1? As a Government employee, my
> > works are in the public domain, so there is no copyright holder. I'd
> > hate to have one of my contributions cause headaches because of that.
> >
> > Thanks,
> > Cem Karan
>
> FWIW, I don't know why government lawyers can't read the civil code
>
> Caution-https://www.copyright.gov/title17/92chap1.html#105
>
> and figure out that "Copyright protection under this title is not available
> for any work of the United States Government" is not the same
> as saying government employees are incapable of owning copyright.
> The work they are paid to do on behalf of USG (or related to their
> government job) is in the public domain. The rest of their work (the
> boundaries of which we have no means to assess) might or might not be in the
> public domain.
Our lawyers are well aware of the difference. The problem *IS* the work that
civil servants produce in the course of their work. See next comment below.
> Regardless, it isn't possible for one of your contributions to cause us
> headaches when it is entirely in the public domain. By definition, that
> means nobody has the standing in which to cause such a headache, nobody can
> successfully file suit (at least under copyright), and thus no
> court case can proceed.
>
> The danger for headaches comes from other people who might claim (truly or
> not) to own the copyright in spite of the work's origin.
> There's not much we can do in the license about that.
And this is the crux of the problem. What happens when a work that is in the
public domain is licensed under ASL? Since the ASL relies on copyright, a
reasonable person might think that the work itself has copyright. What
happens when someone finds out that it doesn't? Can a smart lawyer
successfully argue that since the clauses that rely on copyright are invalid
for works that are in the public domain then the entire license is invalid for
that work[1]? I'm thinking in particular about clauses 7&8
(https://www.apache.org/licenses/LICENSE-2.0), but to some degree the patent
clause as well.
> There are no plans to make any further changes to the Apache License.
> As mentioned previously, a person concerned about the applicability of the
> license to a public domain work can simply add that "the
> license's copyright terms only apply to the extent that copyright is
> actually owned or licensable by the Contributors". That statement can
> be placed anywhere you like outside the license itself.
So in addition to the ASL, there will be a separate notice containing the
above, and possibly a notice beyond that regarding warranty, liability, and
patent issues... it sounds like public domain code will have to live under the
equivalent of dual licensing, where the ASL would apply to material that had
copyright, and some separate-but-essentially-identical notice for the public
domain code to cover the non-copyright issues that the ASL already covers,
correct? Is it possible to write such a notice/license that is interoperable
with the ASL?
> The reason that isn't said in the license is because the copyright terms
> merely provide a permission that isn't needed without copyright.
> It is completely irrelevant whether they apply to any given piece of work in
> the public domain.
>
> ....Roy
I see your point. Do you understand mine?
Thanks,
Cem Karan
[1] I am *not* saying that the license is invalid for works with copyright! I
am only considering the case where a work doesn't have copyright.
Re: [Non-DoD Source] Suggested license mod or FAQ
Posted by Christopher <ct...@apache.org>.
On Wed, Jan 18, 2017 at 10:14 PM Roy T. Fielding <fi...@gbiv.com> wrote:
> > On Jan 6, 2017, at 6:33 AM, Karan, Cem F CIV USARMY RDECOM ARL (US) <
> cem.f.karan.civ@mail.mil> wrote:
> >
> > Hi, my name is Cem Karan, and I'm one of those Government employees that
> Chris
> > was talking about. Is it also possible to clarify the definition of
> Licensor
> > in clause 1? As a Government employee, my works are in the public
> domain, so
> > there is no copyright holder. I'd hate to have one of my contributions
> cause
> > headaches because of that.
> >
> > Thanks,
> > Cem Karan
>
> FWIW, I don't know why government lawyers can't read the civil code
>
> https://www.copyright.gov/title17/92chap1.html#105
>
> and figure out that "Copyright protection under this title is not
> available for any work of the United States Government" is not the
> same as saying government employees are incapable of owning copyright.
> The work they are paid to do on behalf of USG (or related to their
> government job) is in the public domain. The rest of their work
> (the boundaries of which we have no means to assess) might or might
> not be in the public domain.
>
> Regardless, it isn't possible for one of your contributions to cause
> us headaches when it is entirely in the public domain. By definition,
> that means nobody has the standing in which to cause such a headache,
> nobody can successfully file suit (at least under copyright), and
> thus no court case can proceed.
>
>
You hinted at Cem's concerns when you said "at least under copyright". Cem
isn't concerned about copyright infringement, but liability lawsuits.
> The danger for headaches comes from other people who might claim
> (truly or not) to own the copyright in spite of the work's origin.
> There's not much we can do in the license about that.
>
> There are no plans to make any further changes to the Apache License.
> As mentioned previously, a person concerned about the applicability
> of the license to a public domain work can simply add that "the
> license's copyright terms only apply to the extent that copyright
> is actually owned or licensable by the Contributors". That statement
> can be placed anywhere you like outside the license itself.
>
>
I agree. I think it'd be useful for government projects to add this sort of
phrasing to their NOTICE files, if they care about copyright applicability.
However, it'd be a bit tedious for other projects, like many of those in
the ASF, which might contain portions which are public domain. So, while
there are no current plans to make any changes to the license, I think it'd
probably be good to consider some sort of generic severability clause to
accompany any future versions of the license, if it ever becomes necessary
or desirable to produce a new version of the license.
> The reason that isn't said in the license is because the copyright
> terms merely provide a permission that isn't needed without copyright.
> It is completely irrelevant whether they apply to any given piece
> of work in the public domain.
>
>
That's not entirely true. In addition to explicitly providing permissions,
the right to redistribute is conditional on certain restrictions in section
4, paragraphs a-d. For the portions which are public domain, these
restrictions cannot be carried.
> ....Roy
>
>
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> For additional commands, e-mail: legal-discuss-help@apache.org
>
> --
Christopher
Re: [Non-DoD Source] Suggested license mod or FAQ
Posted by "Roy T. Fielding" <fi...@gbiv.com>.
> On Jan 6, 2017, at 6:33 AM, Karan, Cem F CIV USARMY RDECOM ARL (US) <ce...@mail.mil> wrote:
>
> Hi, my name is Cem Karan, and I'm one of those Government employees that Chris
> was talking about. Is it also possible to clarify the definition of Licensor
> in clause 1? As a Government employee, my works are in the public domain, so
> there is no copyright holder. I'd hate to have one of my contributions cause
> headaches because of that.
>
> Thanks,
> Cem Karan
FWIW, I don't know why government lawyers can't read the civil code
https://www.copyright.gov/title17/92chap1.html#105
and figure out that "Copyright protection under this title is not
available for any work of the United States Government" is not the
same as saying government employees are incapable of owning copyright.
The work they are paid to do on behalf of USG (or related to their
government job) is in the public domain. The rest of their work
(the boundaries of which we have no means to assess) might or might
not be in the public domain.
Regardless, it isn't possible for one of your contributions to cause
us headaches when it is entirely in the public domain. By definition,
that means nobody has the standing in which to cause such a headache,
nobody can successfully file suit (at least under copyright), and
thus no court case can proceed.
The danger for headaches comes from other people who might claim
(truly or not) to own the copyright in spite of the work's origin.
There's not much we can do in the license about that.
There are no plans to make any further changes to the Apache License.
As mentioned previously, a person concerned about the applicability
of the license to a public domain work can simply add that "the
license's copyright terms only apply to the extent that copyright
is actually owned or licensable by the Contributors". That statement
can be placed anywhere you like outside the license itself.
The reason that isn't said in the license is because the copyright
terms merely provide a permission that isn't needed without copyright.
It is completely irrelevant whether they apply to any given piece
of work in the public domain.
....Roy
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