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From Jennifer Machovec <jennifer...@gmail.com>
Subject Re: FW: tools to fix Apache License headers
Date Wed, 16 Feb 2005 14:46:11 GMT
First, the use of a copyright notice is no longer required under U.S.
law for works published on or after March 1, 1989 (although there are
benefits to doing so, and it has effect in other countries).  Second,
in copyright infringement cases where the defendant claims "innocent
infringement" as a defense, the opinions focus on whether the
defendant had reasonable notice that the work was protected and had
the ability to identify the copyright owner.  The designation "ASF or
its licensors, as applicable," together with the COPYRIGHT file that
accompanies the source and sets forth the third-party copyright
notices for ASF contributors, places the user on notice of the
copyright protection and provides sufficient information about the
identity of the owner(s).

Further, please note that even if strict compliance with the copyright
statute were required (say, for pre-1989 works), if the owner of a
collective work (like an ASF project) is not the same as the owner of
an individual contribution that lacks its own notice, naming only the
owner of the collective work would be deemed an "erroneous notice." 
Here, identifying just ASF would be misleading and insufficient.  Note
that using the "innocent infringement" defense, if the defendant can
show that it was misled and obtained a license from the entity
identified in the notice, it could have a complete defense against the
infringement claim.  That would significantly impede the ability of
the ASF contributors to protect their copyright.

It would be a more comprehensive approach to identify the precise
third-party licensors in this same notice.  However, that was not
viewed as consistent with Apache's mission and created administrative
burden, and placing the third-party notices in a readily accessible
file accomplishes the same goal.  I believe (as do ASF counsel and the
copyright counsel that was consulted regarding this issue) that the
present Derby notice is acceptable.

Cheers,

Jennifer Machovec


On Tue, 15 Feb 2005 19:32:43 -0800, Lawrence Rosen <lrosen@rosenlaw.com> 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....
> 
> /Larry
> 
> > -----Original Message-----
> > From: Lawrence Rosen [mailto:lrosen@rosenlaw.com]
> > Sent: Friday, February 11, 2005 3:45 PM
> > To: 'David Crossley'
> > Cc: 'legal-discuss@apache.org'
> > Subject: RE: tools to fix Apache License headers
> >
> > The copyright act specifies the form of a copyright notice:
> >
> > 401. Notice of copyright: Visually perceptible copies
> > ...
> > (b)  Form of Notice.- If a notice appears on the copies, it shall consist
> > of the following three elements:
> > (1) the symbol (c) (the letter C in a circle), or the word "Copyright",
> or
> > the abbreviation "Copr."; and
> > (2) the year of first publication of the work; in the case of
> > compilations, or derivative works incorporating previously published
> > material, the year date of first publication of the compilation or
> > derivative work is sufficient. The year date may be omitted where a
> > pictorial, graphic, or sculptural work, with accompanying text matter, if
> > any, is reproduced in or on greeting cards, postcards, stationery,
> > jewelry, dolls, toys, or any useful articles; and
> > (3) the name of the owner of copyright in the work, or an abbreviation by
> > which the name can be recognized, or a generally known alternative
> > designation of the owner.
> >
> > The law requires "the name of the owner of copyright in the work...." It
> > does not authorize the phrase "or its licensors, as applicable." That
> > phrase does not allow anyone to determine, for example, when the copyright
> > in the work will expire, because it doesn't make it clear whether the
> > author is a person or an organization.
> >
> > If the Apache work is a compilation or derivative work of earlier
> > contributions, it would be sufficient to say:
> >
> >      Copyright 2005 Apache Software Foundation.
> >
> > /Larry
> >
> > Lawrence Rosen
> > Rosenlaw & Einschlag, technology law offices (www.rosenlaw.com)
> > 3001 King Ranch Road, Ukiah, CA 95482
> > 707-485-1242  ‚óŹ  fax: 707-485-1243
> > Author of "Open Source Licensing: Software Freedom
> >                and Intellectual Property Law" (Prentice Hall 2004)
> >
> >
> > > -----Original Message-----
> > > From: David Crossley [mailto:crossley@apache.org]
> > > Sent: Friday, February 11, 2005 3:31 PM
> > > To: Lawrence Rosen
> > > Cc: legal-discuss@apache.org
> > > Subject: Re: tools to fix Apache License headers
> > >
> > > Lawrence Rosen wrote:
> > > > David Crossley wrote:
> > > > > It changes
> > > > >  Copyright YYYY-YYYY The Apache Software Foundation
> > > > > to
> > > > >  Copyright YYYY-YYYY The Apache Software Foundation or its
> > licensors,
> > > > >  as applicable
> > > >
> > > > I'm sorry if I missed this in an earlier email, but this isn't a valid
> > > > copyright notice.
> > >
> > > Would you elaborate please Larry. The discussion that led
> > > to this change was on another list. Here is an example of
> > > the full context of a license header in an Apache source file:
> > > http://svn.apache.org/viewcvs.cgi/forrest/trunk/bin/forrest?view=markup
> > >
> > > --David
> 
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