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From Leo Simons <m...@leosimons.com>
Subject Re: CLA issues Was: java.sql.*
Date Mon, 13 Feb 2006 01:25:03 GMT
Tor,

IANAL.

On Mon, Feb 13, 2006 at 01:34:15AM +0100, Tor-Einar Jarnbjo wrote:
> assuming or expecting that US law is relevant if it comes to a legal 
> dispute between e.g. a non-US contributor and a non-US software user or 
> a non-US owner of related intelletual rights, is IMHO rather naive.

Just about every web hosting company out there and just about every
large software vendor out there ships or uses software licensed from the
Apache Software Foundation under the Apache License, version 2.0, which
is hence sublicensed under the Apache CLA and/or the Apache License from
the ASF its contributors. The german government is also well-known for
using a lot of ASF software!

Just about every huge software vendor out there that has employees in a
variety of countries has employees in a variety of countries which
contribute under this same CLA, often while being paid by that same company
to do so. Many of those vendors have also sent in CCLAs and or software
grants.

Some of the most skilled and knowledgeable intellectual property lawers,
both European and American, have reviewed and/or constantly review the
ASF its legal processes, documents, etc.

So, IMHO, while you certainly shouldn't trust me or my word or my opinion
to be correct when it comes to legal matters, if a document is up on

  http://www.apache.org/licenses/

as "official" paperwork and is further considered "current best
practice", you should not have to worry about it being naive (even if you
should always worry about it being "right").

This is one of the major benefits of doing things under the wings of the
ASF - you get to worry just a little less about this stuff. The ASF paperwork
is about as close as you can get to a "standard", with the possible exception
of the FSF paperwork (in particular, you might be interested in
  http://www.fsfeurope.org/projects/fla/fla.en.html
).

> >> License". First problem is, that I can't grant you anything I 
> >>currently don't have, a "copyright" on my work. The German 
> >>counterpart, my "Urheberrecht" is not transferable and any license I 
> >>give to use, redistribute, modify etc. the work may under some 
> >>conditions be revoked. Any contract diverging from these principles 
> >>is in Germany legally void.
> >
> >We aren't asking for a copyright transfer.  You still retain any and 
> >all copyright on the work.  What you are doing is granting a license 
> >to the work under the Apache License.
> 
> Well, you skip the most important part, that some statements in the 
> paragraph are legally void in Germany, and probably most countries, not 
> having an Anglo-Saxon style copyright law. Most problematic are probably 
> the claims for an perpetual, irrevocable license and the claim for 
> sublicensing rights and rights to produce derivative works. I really 
> don't like to bother with legal regulations, but wether you or I like 
> it, this agreement won't hold if proven in a German court and a German 
> court will be responsible, if a German contributor for some reason 
> should decide to take legal actions against some other German entity, 
> which e.g. is producing, distributing or using a derivate work of the 
> contributor's original work. The word "German" in the last sentence may 
> be replaced with many other nationalities, without invalidating the 
> content :-/

I don't know enough about law or legal systems to be able to dispute the
above, and I'm not going to try, but I do know that it does not match up
with what I've previously been told by a variety of people.

I believe current ASF counsel is all US-based.

I would suggest seeking legal advice from a lawyer specializing in how
open source licensing applies within German copyright law. I know there's
a lawyer or two here in The Netherlands that specialize in this kind of
licensing stuff, Germany must have some, too.

I'll also request everyone tries to ensure that you do not try and
represent anything as legal "fact" unless its been thoroughly verified that
it is indeed rather certain that what is being said is undisputable. Also,
always try and provide as much references as possible. There is enough
confusion with regard to all this legal stuff already, and we should make
sure we don't try to add to it.


cheers!


Leo

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