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From Paul Richards <p...@netcraft.co.uk>
Subject Re: Questions about Apache License (fwd)
Date Wed, 13 Sep 1995 14:45:28 GMT
In reply to Beth Frank who said
> Please keep the NCSA attribution.  I think that it is useful
> for the information about which NCSA httpd version the code
> was originally based on to be included in the source distribution
> somewhere.  I don't think it needs to be included in every file. 
> Perhaps it could be placed in just the README and the documentation?

I certainly wasn't advocating removing the NCSA attribution. I just
think it should be taken out the the Apache license "template" and
only included in those files that actually are derived from the
NCSA code. I think the origins of the Apache server can be explained
in the "What is the Apache project" file that I suggested in my
reply to Andrew's mail.

> 
> When we were going through our  copyright hassles, the impression
> I got was that code was either public domain or it wasn't.
> If the code was public domain you can request that that it not
> be resold but when push comes to shove you can't really do
> much about it.  Most of the other verbage is just a guideline
> that you are requesting people to follow and the majority people
> will follow it.  If the code is public domain and they choose not
> to follow your guidelines, chances are you would lose any legal
> battle over it (although if you have the money to burn, you can
> drag the legal battle out long enough to consume their profits).

If the code is in the public domain then no-one has any rights to
the code whatsover, that's what being in the public domain means.
Very few projects of this size place their code in the public
domain. The most common course of action is to retain copyright
and to license it's use correctly which is what most people here
seem to want to do, i.e. they want to retain some control over how
the code and the Apache name is used. I need to find out what exactly
has to take place to have code placed in the public domain. Simply releasing
it without a copyright isn't enough (see below).

I agree with your point that this is all rather arbitrary window dressing
since unless someone's willing to supply the bucks to deal with the
legal fees then you can't really stop any abuse of the licensing conditions
but I'd like to see the issues cleaned up so that there is at least a
legal basis to carry out a defence should the funds be available. The way
things currently are even if there was a rich backer any law suit would
be lost because of the ambiguity of the current license and the fact that
no-one can legally stand up and claim ownership of the code.

> 
> If you reserve the copyright to a legal entity, then the verbage
> that follows the copyright statement is important only in that
> it is a form of licensing.  (eg. In the NCSA httpd 1.5, it's a
> license to use it for non-commercial use, with non-commercial
> use defined as not placing it in any package that is being
> sold.)  Anyone not covered by the distributed license has to
> contact the holder of the copyright for a license to use the
> software in the way they wish to.  The problem with reserving
> the copyright is that you have to defend it or lose it.  I'm
> not sure that the Apache group has the resources to actually
> defend a copyright, if it should become necessary.  And any
> truely slimey individual would probably be aware of that.  So

I don't believe that is true. Under the Berne convention the author
always holds copyright, *even if there is no explicit copyright notice*,
which is why I was so concerned about the original NCSA sources. You will
not lose the copyright if you don't defend it. It's rather hard to enforce
licensing restrictions without the legal muscle to do so though.

> I'm not sure what you gain by reserving the copyright to a 
> group that may or may not have a legal status.  Those who are
> willing to play by the rules will probably follow whatever
> guidelines are listed with the copyright whether that copyright
> grants ownership to the public domain or not.  It probably won't
> matter what your copyright is to those who want to misuse the
> code, unless you can convince them that you'll enforce your
> license.

Having a legally sound copyright and license helps to disuade the more
reputable companies who might otherwise try and repackage the code. 
A slime ball is a slime ball and if someone wants to flagrantly break
the law and hope they get away with it because the victim doesn't have
the financial muscle to defend themselves then there's not much you can do
about it. 


-- 
  Paul Richards, Netcraft Ltd.
  Internet: paul@netcraft.co.uk, http://www.netcraft.co.uk
  Phone: 0370 462071 (Mobile), +44 1225 447500 (work)

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