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From robert burrell donkin <rdon...@apache.org>
Subject RE: Corporate Contributions
Date Sat, 26 Mar 2005 09:12:32 GMT
On Fri, 2005-03-25 at 13:49 -0800, Jim Barnett wrote:
> It was not my intent to sow any "fear" but rather to identify and discuss the IP risks
associated with accepting contributions, understand ASF's current methods of minimizing those
risks, and understand the groups' perceptions about how ASF would respond to a third party
claim.  Part of my reason for participating in this thread is to assess the risks and benefits
of ASF project participation, contribution (XMLBeans, Beehive, etc.) and use of ASF code for
my employer.  Accordingly, these issues are important to us.          
> From an IP ownership perspective, where something that is owned by an employer (by state
law, federal law, contract, or otherwise), is contributed to an ASF project by an employee
without the employer's authorization, I do not believe that ASF's "openness" and transparency
helps that much.  It is not a standalone defense to an infringement claim.  It would help
establish a laches or statute of limitations defense, an implied authority argument, or something
novel predicated on the employer's negligence in managing its employees.
> I also agree that ASF should disclaim liability to the fullest extent possible.  Disclaimers
can be very effective at limiting exposure between the parties where they are included in
a contract.  General disclaimers published on a website, however, are not as effective at
limiting exposure.  What duty does a non-participant third party have to read anything published
on an organization's website or to investigate transparent OSS projects for unauthorized contributions
by their employees?  I think establishing either actual or constructive notice or duty to
investigate could be difficult.
> None of the issues we've been discussing contemplate or require any criminality by venal
contributors.  Each is just as likely to arise through completely innocent, accidental contributions
of an employer's IP, as by subterfuge.  In a commercial licensing context (which I am admittedly
much more at home with), the parties usually address in their contract what happens if an
adverse third party claim arises with respect to licensed technology.  There is a mechanism
allowing the licensor to attempt to replace the offending code, and failing that, terminate
the license.  OSS licenses don't work that way since there are no indemnities and no express
remedies.
> I am not saying that ASF shouldn't educate prospective project participants, publicize
the "openness" of ASF projects, or highlight employer responsibility to oversee employees'
activities.  It should.  Reasonable minds can differ, however, as to how much protection "openness"
and public education buys ASF.  I happen to disagree that it takes a far fetched hypothetical
involving criminal actors to legitimize the issues I've raised.      
> I really liked Costin's earlier suggestion about an ASF FAQ on the IP cleanliness issues
and would welcome the chance to participate with the group in developing it.

i'm grateful that jim willing to discuss the whole spectrum of
possibilities. it's important to get these issues out in the open and
come up with some solutions. 

<IANAL>

i (for example) am exposed to criminal liability (under UK copyright
law) by my activities as a release manager. if a US contributor (for
example) makes a innocent mistake about the current US law, then i could
be charged and (if found guilty) might be faced with sequestration of
my assets plus a long gaol sentence. 

the key to UK law is acting ethically. my only defence would be that i
acted in good faith. if ASF contributors act ethically, then i have
nothing to fear. if they do not, then CCLAs will not save me. 

the main point i would like to make is that the CCLA is a solution that
though it may prove effective under US law, may prove ineffective under
UK law (for example). different solutions may well be needed where
employment law differs. it's interesting to note that there is a hint
that the situation under US law may vary from state to state. employers
in jurisdictions where the CCLA is (for practical purposes)
unenforceable or unpredictable (legally) are very likely to take the
attitude that the expense (of seeking legal opinion) and the risk (of
unforeseen legal consequences) are too great (given no commercial
reward). 

jim's previous master-servant example is very interesting and indicates
where UK and US law seem to have diverged. it seems that US employment
law arises from agency and contractual relationships. though it is
possible to be an agent of a company (or individual), this relationship
is not addressed by UK employment law. UK employment law arises from
more equitable employment regulations for servants. as a servant, i have
to be on my employers premises as specified, keep my nose clean and do
what i'm told. i don't have the same duties to act in my employers best
interests as an agent would. 

UK employment contracts are governed by employment statue rather than
contract statue (as would agency). as an agent, if i do wrong, i would
expect to be sued. as a servant, i would expect to be faced with either
the sack or criminal charges. there are also no laws about trade secrets
here. 

it's often said that UK employment contracts are not enforceable: this
is incorrect. it's just that they are enforceable under employment
statue rather than contract statue. when you are employed it is now very
difficult to have any other relationships with your employer. all such
contracts are viewed through the employment statue lens. the legal
rights granted by the CCLA to an employee are therefore difficult to
predict.

i'm still a little confused about how the legal redress theory would
work when faced with a disputed contribution by an employed UK
committer. how would the ASF or downstream users go about seeking
redress (using a signed CCLA) if a UK court reassigns (under UK
employment law) ownership of source copyright from that employee to an
employer?

</IANAL>

- robert


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