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From Mark Wielaard <m...@klomp.org>
Subject Re: Problems/Issues/Questions
Date Wed, 11 May 2005 13:56:50 GMT

On Tue, 2005-05-10 at 17:05 -0700, Anthony Green wrote:
> On Tue, 2005-05-10 at 14:29 -0400, Davanum Srinivas wrote:
> > - Any ASF contributor if they want to make changes to CLASSPATH, will 
> >   have to adhere to the clean room clauses
> >   (http://www.gnu.org/software/classpath/faq/faq.html#faq3_2)
> I think this is worth pushing on a little if there is some interest.
> AFAIK, this was just a policy to minimize and risk of being called
> thieves, and is not central to the FSF's position on Free Software.
> Perhaps they may be convinced to tweak this policy a little if it makes
> sense.

As noted above I have updated the answer based on input from FSF legal a
while ago. There is even more information available at:

> For example, Sun's Java Research License FAQ reads:
> "18. Does the JRL prevent you from being able to create an independent
> implementation of J2SE?
> The JRL is not a tainting license, and includes an express "residual
> knowledge" clause. Under the JRL, merely looking at Sun's code does not
> prevent you from being able to create your own independent
> implementation of J2SE, and in any event, you can terminate the JRL at
> any time for any reason. So, yes, you can look at Sun source code and
> then later on go and work on an open-source J2SE implementation."
> Somebody (mjw?) should run this past FSF legal.

I'll forward this to FSF legal, but in general we advise people not to
enter into contracts that potentially could result in tricky legal
issues in the future. Also normally FSF legal doesn't really want,
doesn't have the time, to go into all hypothetical scenarios. In general
we solve potential legal issues if there is a real need. So when someone
explicitly wants to enter into such a gated community contract and
actually has a real contribution that they want to contribute to GNU

The following doesn't come from FSF Legal, but is the advise given by
Lawrence Rosen. He made an analysis of the problems with Residual Rights
clauses in  proprietary software from an attorney, check out Larry
Rosen's 'Open Source Licensing' book, also available online at 
http://www.rosenlaw.com/oslbook.htm .

In chapter 11, Rosen deals with a nearly identical Residual Rights 
clause from Microsoft's 'Shared Source' initiative (p. 257):

"     You may use any information in intangible form that you re-
       member after accessing the Software. However, this right
       does not grant you a license to any of Microsoft's copyrights
       or patents for anything you might create using such informa-
       tion. (Microsoft Shared Source CLI, C#, and JSCRIPT

p.258 continues to explicitely deal with the case of implementing 
'competing' open source software after looking at 'Shared Source' code:

"If you are a software developer who intends to write software that
might potentially compete with Microsoft's copyrights or patents, there 
is great risk in looking at Microsoft's source code. Under the copyright 
law in the United States, if Microsoft proves that there is "substantial 
similarity" between your commercial software and theirs, you may be an 
infringer. You may have to prove that you saw and read Microsoft's 
source code but that you relied only on intangibles and only
on your memory when you wrote your own software.

    That's a difficult evidentiary burden. I'm not sure how even
an experienced programmer can walk that fine line. Perhaps the best way 
is simply not to look at Microsoft's source code at all."

(Thanks to Dalibor for that link and text btw.)



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