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From "Jim Barnett" <j...@bea.com>
Subject RE: NMS
Date Thu, 07 Jun 2007 15:14:10 GMT
Interesting proposition, however the concept of derived work in a strict
copyright sense (i.e., derivative work) may not apply to implementation
of a specification.  Copyright protects against copying ultimately.  A
derivative work is a work that is based on and actually includes part of
the copyrighted work that it is derived from.  Remember, copyright
protects only expressions of ideas that are fixed in a tangible form,
and not the underlying ideas themselves.  

Applying this to the example of a specification, the question as to
whether an implementation is a derivative work of the specification
depends on whether portions of the expression of the copyrighted
specification are present in the implementation.  The more detailed a
specification is, generally the greater the potential that an
implementation is a derivative work.  The converse is also true.  Take
the JVM specification for example.  It rather vaguely specifies that a
JVM needs "garbage collection".  It is unlikely therefore that an
implementation of garbage collection logic in a JVM implementation would
be derivative of the vague GC portion of the JVM specification.  There's
some fringe greyness perhaps in the area of non-literal copying, but
that's a story for another day.

"Tainting" has a few different guises.  One of them is tainting in a
copyright sense.  The elements of a prima facie case of copyright
infringement are (i) access to the copyrighted work by the alleged
infringer, and (ii) substantial similarity between the copyrighted work
and the alleged infringing work.  A party becomes copyright "tainted"
when it can be documented that they had access to another party's
copyrighted work and later produce works with similarities to that
copyrighted work.  Another flavour of tainting relates to trade secrets
and/or contractually defined confidential information.  The contract or
license granting access to a third party trade secret or confidential
information defines the rules for use of that intellectual property by
the accessor.  Depending on those rules and restrictions, later work by
the accessor in areas where the ideas embodied in the trade secrets or
confidential information have relevance may pose a heightened risk of
misappropriation or breach of confidentiality obligations.  This latter
type of tainting risk is what "residuals clauses" are intended to
mitigate.

I haven't formed an opinion on the issue in chief yet, but thought the
above might be helpful in structuring our review of the issue regarding
similarities between the JMS specification and the NMS API.

Regards,

Jim  

-----Original Message-----
From: Paul Fremantle [mailto:pzfreo@gmail.com] 
Sent: Thursday, June 07, 2007 6:35 AM
To: Hiram Chirino
Cc: general@incubator.apache.org; legal-discuss@apache.org;
asimon@redhat.com
Subject: Re: NMS

Hiram


> I guess you are referring to the license to that allows a person to
> hold a copy of the JMS spec.  I wonder if violating/terminating the
> that license IP taints any work created using Ideas obtain from it.
> Since this seems to be in the Idea category... I would have thought
> that there would need some patents in place to enforce it.

Not really. Once you agree to a contract (like that license) its
simply contract law, AFAIK.


> > at the JMS specification. Secondly the JMS copyright. Since, as far
as
> > I can see, NMS is likely to be a "derived work" of JMS it is also
> > likely that it breaches the copyright of the spec.
> >
>
> I can assure you that no copying has taken place.  NMS was initially
> not an abstract messaging API.  It was just an API to the .NET client
> implementation for ActiveMQ.  Once that started to take shape an
> abstract API that has the same domain model as JMS was extracted from
> the implementation.   It would be more accurate to say that NMS is a
> derived work of an ActiveMQ client.

Yes, but where did the ActiveMQ design come from? Since ActiveMQ was
designed - as I understand it - as an implementation of the JMS spec,
then it is itself a derived work of the JMS spec, and therefore NMS is
a derived work too. Now the JMS Spec license allows you to create
derived works, as long as they are Java implementations, so ActiveMQ
as a JMS server is covered, but that coverage doesn't apply to NMS
because Sun specifically limited the license.

Regards,
Paul


> > On 6/7/07, Hiram Chirino <hiram@hiramchirino.com> wrote:
> > > I ceased use of and destroyed my copy of the Specification years
ago =)
> > >
> > > But seriously, what kind of IP is it that is being violated?
> > > copyright? patent? or some other kind that I'm not aware of?
> > >
> > > Regards,
> > > Hiram
> > >
> > > On 6/1/07, Arnaud Simon <asimon@redhat.com> wrote:
> > > > Hello,
> > > >
> > > > We have been thinking about implementing the NMS API as part of
the
> > > > QPID .Net client. However we are concerned about potential legal
issues.
> > > > It seems to me that the NMS API is very similar to the JMS one
but the
> > > > JMS specification specifically licenses the technology "only for
Java".
> > > >
> > > > This is the relevant license, copied directly from the JMS Spec
> > > > document:
> > > >
> > > > "Subject to the terms and conditions of this license, Sun hereby
grants
> > > > you a fully-paid, non-exclusive, non-transferable, worldwide,
limited
> > > > license (without the right to sublicense) under Sun's
intellectual
> > > > property rights to review the Specification internally solely
for the
> > > > purpose of designing and developing your Java applets and
applications
> > > > intended to run on the Java platform. Other than this limited
license,
> > > > you acquire no right, title or interest in or to the
Specification or
> > > > any other Sun intellectual property. The Specification contains
the
> > > > proprietary information of Sun and may only be used in
accordance with
> > > > the license terms set forth herein. This license will terminate
> > > > immediately without notice from Sun if you fail to comply with
any
> > > > provision of this license. Upon termination or expiration of
this
> > > > license, you must cease use of or destroy the Specification."
> > > >
> > > > Does anybody know if this concern has already been raised?
> > > >
> > > > Regards
> > > >
> > > > Arnaud
> > > >
> > > >
> > > >
> > > >
---------------------------------------------------------------------
> > > > To unsubscribe, e-mail: general-unsubscribe@incubator.apache.org
> > > > For additional commands, e-mail:
general-help@incubator.apache.org
> > > >
> > > >
> > >
> > >
> > > --
> > > Regards,
> > > Hiram
> > >
> > > Blog: http://hiramchirino.com
> > >
> > >
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> > > To unsubscribe, e-mail: general-unsubscribe@incubator.apache.org
> > > For additional commands, e-mail: general-help@incubator.apache.org
> > >
> > >
> >
> >
> > --
> > Paul Fremantle
> > Co-Founder and VP of Technical Sales, WSO2
> > OASIS WS-RX TC Co-chair
> >
> > blog: http://pzf.fremantle.org
> > paul@wso2.com
> >
> > "Oxygenating the Web Service Platform", www.wso2.com
> >
> >
---------------------------------------------------------------------
> > DISCLAIMER: Discussions on this list are informational and
educational
> > only.  Statements made on this list are not privileged, do not
> > constitute legal advice, and do not necessarily reflect the opinions
> > and policies of the ASF.  See <http://www.apache.org/licenses/> for
> > official ASF policies and documents.
> >
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> > To unsubscribe, e-mail: legal-discuss-unsubscribe@apache.org
> > For additional commands, e-mail: legal-discuss-help@apache.org
> >
> >
>
>
> --
> Regards,
> Hiram
>
> Blog: http://hiramchirino.com
>


-- 
Paul Fremantle
Co-Founder and VP of Technical Sales, WSO2
OASIS WS-RX TC Co-chair

blog: http://pzf.fremantle.org
paul@wso2.com

"Oxygenating the Web Service Platform", www.wso2.com

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