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From "Jim Barnett" <j...@bea.com>
Subject RE: FW: tools to fix Apache License headers
Date Wed, 16 Feb 2005 19:50:27 GMT
Sorry.  I may be one of the parties to the back-channel dialogue Larry
mentioned.

Below is the full text of my e-mail to Larry.

I omitted to copy the entire group originally because I assumed (maybe
wrongly) that the broader group would be bored stiff by a discussion of
Copyright Act technicalities and more general topics outside the scope
of the form of copyright notice question.

Note, Cliff advised me that he is a Member and Officer but not a "Board
Member" as I incorrectly identified him in my e-mail to Larry.

Sorry again,

Jim Barnett
Sr. Counsel
BEA Systems, Inc.

"Larry:

I am one of BEA System's attorneys.  I believe that you may have met
Cliff Schmidt (Apache Board Member) who works with me at BEA.  I am
pretty sure that Cliff routinely quotes excerpts from one of your books
to me.  : )  I think your post below is interesting and agree that a
literal reading of Section 401 of the Act does not support the "or its
licensors, as applicable" addition.   Unfortunateley when I looked at
this issue a couple of years ago, I wasn't able to locate much caselaw
or other authority on what exactly is meant by the "name of the owner"
versus "a generally known alternative designation of the owner."    

The "...or its licensors, as applicable" addition probably would not
qualify as a "generally known" alternative designation for the other
owners/contributors.  Nonetheless, I think limiting the notice to
ASF-only in some cases might be as problematic as adding the (likely
ineffective) reference to other licensors.  

Contributors to Apache projects do not assign the copyright in
contributions to Apache but rather retain ownership and merely license
the works to ASF.  If the work in question is a "compilation work" or
"derivative work" as many Apache projects are, the Apache-only notice
should be sufficient.  In some cases, however, Apache project output may
not strictly conform to the definitions of either "derivative work" and
"compilation" as defined by Sections 103 and 101 of the Act.  For
example, how do we measure whether a work was "preexisting" in the
context of a collaborative development environment like an Apache
project?  (Also, there is authority suggesting protection offered to
"compilations" is "thin.")  Playing "what if" for a second, what if a
work distributed under the ASF-only notice was found in a dispute
context to be neither a compilation nor a derivative work?  My concern
is that the infringer would have "innocent infringer" status because the
notice would not have identified the true owner(s).

It is my understanding that the "or its licensors, as applicable"
language was introduced to try and maintain some "willful infringement"
argument (actual notice, inquiry notice, etc.) in cases where the work
turns out to be neither derivative work nor a compilation.  A weak
argument could be better than none at all.   The legally "safer"
alternative (i.e., including a separate copyright notice for each
project contributor) wasn't palatable to ASF.  In other non-Apache
OSS-related contexts I've seen every single contributors' copyright
notice provided in the license file.  While it may be prophylactic it
does look funny when a 1 page license is prefaced by 2 pages of
copyright notices.

Finally, there may be a practical benefit in being reminded that
entities other than Apache may own copyrights in a work available from
Apache.  It triggers a due diligence exercise on the would-be licensee's
end to examine the project that created the work to get a feel for who
the main contributors were.  Things that might influence a decision
whether to license the work could include verifying that individual
contributors to the project really were functioning as individuals and
not tainted by some undisclosed employer-employee relationship.  Please
don't take me for a paranoid, but the SCOX-IBM saga would have sounded
far fetched to me before it was filed. 

In certain cases where BEA has looked into incorporating ASF-licensed
code into products, we've researched the contributor makeup as best we
could.  Where there are many individual contributors who nevertheless
have e-mail addresses such as "oracle.com," "microsoft.com," "ibm.com,"
etc., we have delayed licensing the code until we were able to validate
that the "possible" employer companies also had executed a corporate
level contributor agreement for that project.

I work in San Jose but live nearer to your neck of the woods.  I commute
to San Jose from Petaluma.  If you are ever in San Jose (or Petaluma for
that matter), let me know.  I would enjoy meeting you.  I also would
really like a sanity check on how BEA reads the LGPL as the issue of
LGPL compatibility with Apache projects seems to come up more and more
often.

Regards,

Jim Barnett
Sr. Counsel
BEA Systems, Inc.
408-570-8442"

-----Original Message-----
From: Rodent of Unusual Size [mailto:Ken.Coar@Golux.Com] 
Sent: Wednesday, February 16, 2005 11:41 AM
To: lrosen@rosenlaw.com
Cc: legal-discuss@apache.org
Subject: Re: FW: tools to fix Apache License headers

-----BEGIN PGP SIGNED MESSAGE-----

Lawrence Rosen wrote:
> Just a follow-up to the email copied below.... I'm working
back-channel with
> various legal folks involved in Apache to get this resolved. Worry
not....

Everyone: I ask that you refrain from the temptation have
'back-channel' discussions.  The legal-discuss list exists
for open discussion, not for announcing conclusions.

In other words, please bring the 'back-channel' stuff here, and
keep it here.  In the open.

It's a bit awkward because Robyn isn't on this list, but nevertheless.

A lot of time and thought went into the decision.  If you've
thought of an aspect missed by all the people who were involved,
they deserve to know what it is.  If you think you have but it was,
in fact, addressed, then they are entitled to discuss it with
you.
- --
#ken	P-)}

Ken Coar, Sanagendamgagwedweinini  http://Ken.Coar.Org/
Author, developer, opinionist      http://Apache-Server.Com/

"Millennium hand and shrimp!"
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