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From "robert burrell donkin" <robertburrelldon...@gmail.com>
Subject Re: Re JSR170 license
Date Sat, 23 Jun 2007 11:46:39 GMT
On 6/23/07, Randy Gordon <randyjg2@yahoo.com> wrote:
>
> 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.


i'm going to jump in and assume that this is up for public debate since it's
posted to a public list

IANAL and i'm speaking purely personally (no apache hat on)

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.
>

after reading your post the matters you raise are common to JCP
specification, perhaps you might also consider posting something to the open
list apache has created to discuss JCP issues. see
http://www.apache.org/jcp/ but note the list is now open to all

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.


 apache jackrabbit has only one license - the apache license, version 2.0

certain additional rights are granted by the JCP to any compliant
implementations of a JSR and i assume that this is what you're talking about
with respect to day

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.


true but there is only one license issued by apache: the apache license,
version 2.0

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.


AIUI this is how the JCP works (rather than anything to do with day in
particular

they agree to license additional rights to anyone who creates a compliant
implementation. yes, i agree that IMHO it's suboptimal but that's how these
standards work. this is tested by a TCK and any approved implementations are
granted these rights. but this is not transitive - though it's open source,
a fork does not transitively inherit the rights conferred by passing the
TCK.

i personally have some sympathy with your opinions and think that the
process could be improved but that requires lobbying the JCP

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.


not so - the apache license is not subsidiary: apache licenses jackrabbit to
you under the apache license, version 2.0

apache has a CCLA from day which covers their contributions to jackrabbit.
this contract allow apache to license jackrabbit to you under the apache
license

the license for the JCP rights is separate and distinct

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.


the additional JCP license is granted by a process

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.


get  used to 21st century US patent law: every company is threatened by this
issue but the apache license gives limited safeguards against submarining by
contributors (including day)

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.


until the US adopts sensible patent laws, all software is a potential risk
and so should be filled as such

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.


this wouldn't work

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.


day do not own apache jackrabbit. day do not control the licensing of apache
jackrabbit.

the apache software foundation licenses apache jackrabbit to you under the
terms of the apache license

- robert

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