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From Dain Sundstrom <d...@iq80.com>
Subject Re: [VOTE] New ASF/JCP Policies
Date Thu, 12 Jul 2007 05:40:05 GMT

I think we are talking by each other.  I think this boils down to one  
simple issue.

   Is the intellectual property only licensed to compliant  
implementations of the specification?

If so, I don't see how this fits with the ASF.  FWIU, anyone should  
be able to use, modify and redistribute derivatives of ASF software.   
Specifically, someone should be able to modify Geronimo (JEE5 tested  
and certified) to make it non-compliant and still have the ability to  
sell such a non-compliant derivative work.  Of course they could not  
call it JEE or Geronimo, but they should be able to sell their binary.

Assuming all derivative works must be compliant with the spec in  
order to receive the core IP rights contained in the software, then I  
don't see how it qualifies for sections 3 and section 7 of the OSI  
open source definition (http://www.opensource.org/docs/osd).


On Jul 11, 2007, at 7:54 PM, Wade Chandler wrote:

> But the license doesn't say you need any extra IP etc.
> It states you pass the TCK, and it doesn't even
> elaborate beyond that other than satisfying the
> requirements of the TCK user guide. What are the
> requirements of the TCK user guide? Can these be
> shared for analysis? Does the TCK license specifically
> deny one organization passing the TCK for an others
> sources?
> If part of passing the TCK is some type of IP approval
> then ok, but if not then I don't see how it applies to
> some other restriction as it is not specifically
> stating it. With a clean room implementation there is
> nothing which is patented as you are not using code
> you are just implementing the required interfaces
> which the specification license explains are yours
> (anyones) royalty free as long as the 3 terms are
> adhered to, and the 3rd term (iii) doesn't say who
> runs the TCK just that it passes it.
> So, I think the TCK terms can play on this depending
> on  the limitations of what it can be run against, but
> the spec license doesn't say anything (other than the
> TCK user manual) in the TCK license affects the
> specification license other than just passing the TCK.
> For it to hold up in court it would certainly have to
> be specific and not leave room for interpretation, and
> I believe as it does not say who must run the TCK and
> pass the TCK for a given source base it certainly
> leaves room for interpretation. This is without seeing
> the TCK license or the user manual.
> Wade
> --- Dain Sundstrom <dain@iq80.com> wrote:
>> The problem is "and (iii) passes the TCK (including
>> satisfying the
>> requirements of the applicable TCK Users Guide) for
>> such
>> Specification".  I think that the full text is
>> effectually saying,
>> "we'll give you the copyrights and patents (that we
>> can) as long as
>> the code passes the TCK".  The problem is that
>> getting a TCK is not
>> easy and without acquiring a TCK license from the
>> owner you do not
>> have the rights to execute derivative the code.  In
>> the past, people
>> have said that "if you don't pass the TCK you simply
>> can't call it
>> Java" (or what every the brand is), but I believe
>> this text is saying
>> "without the TCK you don't have a license for the IP
>> required to
>> execute the code".
>> So, if a TCK is required to obtain the IP necessary
>> to legally
>> execute the code, and a TCK can cost money, I think
>> we have an
>> additional restrictions beyond the ASL.
>> -dain
>> On Jul 11, 2007, at 12:27 PM, Wade Chandler wrote:
>>> --- Dain Sundstrom <dain@iq80.com> wrote:
>>>> On Jul 9, 2007, at 3:45 PM, Justin Erenkrantz
>> wrote:
>>>>> On 7/9/07, Ralph Goers
>>>> <Ralph.Goers@dslextreme.com> wrote:
>>>>>> I guess I still don't completely understand.
>>>> Apache code is
>>>>>> licensed under
>>>>>> the ASL. If I, as an indidual, ran the TCK
>>>> against Harmony and
>>>>>> announced
>>>>>> to the world that it had passed, why would
>> anyone
>>>> be affected? All
>>>>>> I have
>>>>>> done is run a utility program against my
>>>> binaries. How can the act of
>>>>>> doing that change the ASL for the rest of the
>>>> world?
>>>>> Running the TCK gives us the magic certification
>>>> which in turn gives
>>>>> the ASF the necessary patent licenses to legally
>>>> redistribute the
>>>>> binaries.  -- justin
>>>> This is a huge concern of mine.  If we believe
>> that
>>>> we can not
>>>> distribute this code without running the TCK, I
>>>> think this creates
>>>> all sorts of problems for us.  For example, lots
>> of
>>>> Apache projects
>>>> "Release" uncertified milestones and snapshots
>> which
>>>> I'm not sure we
>>>> could do if there was a patent restriction.  The
>>>> biggest issue is
>>>> downstream recipients of the code.  If they
>> modify
>>>> the code or build
>>>> from source, they would be using an uncertified
>>>> binary without patent
>>>> licenses, and I believe that constitutes a
>>>> downstream restriction.
>>>> My very simple understanding of the ASL doesn't
>>>> allow for such
>>>> restrictions.
>>> I don't believe this is an issue (unless something
>> in
>>> the TCK license counters this). One can get the
>>> specification and implement it. Also it seems the
>>> specification license mentions passing the TCK,
>> but it
>>> does not expressly define who should run the TCK
>> or
>>> that each and every build (surely just those where
>>> changes took place are concerned) be tested:
>>> "Sun also grants you a perpetual, non-exclusive,
>>> worldwide, fully paid-up, royalty free, limited
>>> license (without the right to sublicense) under
>> any
>>> applicable copyrights or patent rights it may have
>> in
>>> the Specification to create and/or distribute an
>>> Independent Implementation of the Specification
>> that:
>>> (i) fully implements the Spec(s) including all its
>>> required interfaces and functionality; (ii) 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 (iii) passes
>> the
>>> TCK (including satisfying the requirements of the
>>> applicable TCK Users Guide) for such
>> Specification.
>>> The foregoing license is expressly conditioned on
>> your
>>> not acting outside its scope. No license is
>> granted
>>> hereunder for any other purpose."
>>> Thus, it doesn't even say the person performing
>> the
>>> test should be the actual owner of the TCK nor
>> limit
>>> the sources the TCK can be run against. Now, the
>> TCK
>>> license may have some other restrictions which
>> counter
>>> this, but someone with their hands on that license
>>> would have to definitively answer that one. So, it
>>> seems one can say they implement the specification
>> as
>>> long as it passes the TCK. Passing the TCK is just
>>> passing it unless there is another process where
>> as
>>> the name of the company the source belong, who ran
>> the
>>> test, etc have to also be included and certified.
>>> Again though, this means one has to have the
>> license
>>> and the users guide to know all these things...I
>> don't
>>> have a TCK.
>>> Wade

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