[jira] [Created] (LEGAL-186) Can PMCs continue to use existing expired TCKs?

["Jim Jagielski (JIRA)" <ji...@apache.org>]

Jim Jagielski created LEGAL-186:
-----------------------------------

             Summary: Can PMCs continue to use existing expired TCKs?
                 Key: LEGAL-186
                 URL: https://issues.apache.org/jira/browse/LEGAL-186
             Project: Legal Discuss
          Issue Type: Question
            Reporter: Jim Jagielski


Background
==========

This question has been moved to legal-discuss@ at the request of the VP,
Legal.

Between June 2002 and June 2012 the ASF licensed a number of TCKs from
Sun/Oracle. The agreement can be found in svn[1]. It includes a number
of amendments which added additional TCKs to the agreement and/or
extended the license from its original expiration date. It also includes
a side-letter that modifies some terms of the agreement.

Neither Oracle nor the ASF have a complete copy of the agreement. A
number of amendments have been lost. It is believed that those
amendments were adding additional TCKs to the license but this is not
certain.

When the agreement expired, Oracle and the ASF started to negotiate a
new agreement. The terms offered by Oracle were not acceptable. Attempts
to negotiate terms agreeable to the ASF have not been successful and it
is now judged to be unlikely that Oracle would ever offer terms that
would be acceptable to the ASF.


Question
========

I have read the agreement several times and - on the basis that the
agreement has expired and will not be renewed - it is not clear to me
whether or not PMCs that previously ran the TCK while the agreement was
in place are able to continue to run the TCK. Further, if PMCs are still
able to run the TCK in limited circumstances it is not clear to me what
those circumstances are.

My question is therefore this:

Under what circumstances, if any, may PMCs continue to use TCKs that
were licensed under the above agreement?


My own analysis
===============

I think that the license has expired rather than been terminated so
section 10.3 applies but section 10.4 doesn't.

Section 10.3 states:
"10.3 Effect of Expiration. Upon expiration of this Agreement, Licensee
shall be authorized to: (a) distribute Product(s) successfully
self-certified against the version of the TCK licensed hereunder at the
time of expiration, subject to Licensee's continued compliance with this
Agreement including the payment of any applicable fees, and (b) retain
one (1) copy of the TCK to support customers having copies of Product(s)
distributed by Licensee prior to the expiration hereof. All other rights
of Licensee shall terminate upon such expiration."


The term "support" as used in the above paragraph is not defined (as far
as I can tell) in the agreement. Does support include testing new point
releases? For example, Tomcat 7.0.0 was tested with the Servlet TCK when
the agreement was in force. A number of further point releases (up to
7.0.27) were made while the agreement was in force. Does section 10.3
give us permission to test all 7.0.x releases after 7.0.27 with the
Servlet TCK? It seems unlikely that we'd be allowed to continuing using
the TCK yet, if 10.3 doesn't give us permission to use continue using
the TCK, what permission does it give us as that is really the only
permission worth having.

The agreement is quite long and there may well be other sections that
apply that I haven't read and/or understood correctly so some advice
from someone with more legal knowledge would be appreciated.

Thanks,

Mark


[1]
https://svn.apache.org/repos/private/foundation/Correspondence/JCP/ApacheScholarship




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