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From Randy Gordon <randy...@yahoo.com>
Subject Re JSR170 license
Date Sat, 23 Jun 2007 11:17:37 GMT
Mr Fielding, 

I apologize for sending this directly to the list, but since I saw your reply only on reading
GMANE on the web and not in my emailed jackrabbit dev digests, I don't know where else to
send it.

My reply to your comments is:

As I said, I am not a lawyer, and this is not legal advice, just simply voicing my concerns
in an appropriate forum.

Basically, I just want Day software to incorpate into their license the assurances you mentioned.
All Day software has to do is state unconditionally that the Apache License terms replace
theirs for anyone using Apache JackRabbit or incorporating Apache JackRabbit into their products.
 
I am reading the license the way I think a judge would read it. Thats because.
should there be litigation, your statements are not admissible in court, only the actual licenses.

I did read the second clause, but I didn't include the second clause, because the fair use
exemption only allows me reproduce one clause at a time. But since you brought it up, it is
now fair game.

.2. License for the Distribution of Compliant Implementations. Licensor also grants you a
perpetual, non-exclusive, non-transferable, worldwide, fully paid-up, royalty free, limited
license (without the right to sublicense) under any applicable copyrights or, subject to the
provisions of subsection 4 below, patent rights it may have covering the Specification to
create and/or distribute an Independent Implementation of the Specification that: (a) fully
implements the Specification including all its required interfaces and functionality; (b)
does not modify, subset, superset or otherwise extend the Licensor Name Space, or include
any public or protected packages, classes, Java interfaces, fields or methods within the Licensor
Name Space other than those required/authorized by the Specification or Specifications being
implemented; and (c) passes the Technology Compatibility Kit (including satisfying the requirements
of the applicable TCK Users Guide) for such Specification
 ("Compliant Implementation"). In addition, the foregoing license is expressly conditioned
on your not acting outside its scope. No license is granted hereunder for any other purpose
(including, for example, modifying the Specification, other than to the extent of your fair
use rights, or distributing the Specification to third parties).

a) and b) don't particularly bother me, though a definition of what constitutes "fully implements"
is a little worrying. An argument can easily be made that even a single bug constitutes not
fully implementing the specification, and thus invalidates the license, subjecting companies
(or their customers) utilizing any software implementing the JSR-170 specification, including
Jackrabbit) to  the threat pf litigation.

What I am concerned about  is "c", TCK compliance and "the foregoing license is expressly
conditioned on your not acting outside its scope." 

You see, in clause 3 (not reproduced here) the pass through conditions expressly state that
any subsidiary license (such as JackRabbits Apache license) do not release users from Days
softwares IP rights (which basically means anything), so it doesn't matter what the  Apache
License says, it appears it would be irrelevant in the case of a threat of litigation by Day
software.

Day gets to define the TCK, so the license can be invalidated simply by their unsupported
statement that it does not pass the requirements, again, subjecting companies (or their customers)
utilizing any software implementing the JSR-170 specification, including Jackrabbit) to the
threat of litigation.

More importantly, not acting outside its scope is so broad anything could invalidate the license,
again, subjecting companies (or their customers) utilizing any software implementing the JSR-170
specification, including Jackrabbit) to  the threat of litigation.

Think this is just mere legal quibbling? JSR-170 is a content repository, in many cases products
using Jackrabbit will be holding content that is under US federal and state laws.

 Consider Kennedy Kasselbaum (HIPPA) laws, state insurance laws, and various records that
might be subject to various records retention laws.  

Using products potentially subject to litigation by Day Software (and thus endangering retention)
is a potential violation of Sarbanes Oxley (or in Europe, Basel II laws ) unless it is explicitly
declared as a potential risk in Corporate filings. 

Since Day software is a Swiss company, there are also various foreign product and nationality
security/homeland defense laws that would require declarations and usage restrictions as well.

I keep on remembering the cautionary tale of SCO's litigations and "settlements". regarding
Unix and Linux.  think Jackrabbit is a wonderful product, I don't want to see that happen
here. 
 
As I said initially, the remedy is simple. Since all Day software has to do is issue a license
that implements  what they are publicly claiming they wont do, anyways, I really can't see
why they would object to doing so.
 
All they have to do is state that the Apache License terms unconditionally replace theirs
for anyone using Apache JackRabbit or incorporating Apache JackRabbit into their products.



 
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