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From "Lawrence Rosen" <lro...@rosenlaw.com>
Subject RE: Copyright text, and javadoc license
Date Sun, 06 Mar 2005 04:00:40 GMT
Simon Kitching wrote:
> I presume (as Roy Fielding mentions) that there is also the possibility
> for the author of a work to assign copyright to the ASF? In which case
>  Copyright 2005 The Apache Foundation
> would be the correct copyright statement to include in the file?

Roy is absolutely correct. The copyright notice contains "the name of the
owner of copyright in the work." 17 USC 401. If Apache owns the copyright in
a Contribution either directly or through assignment, ASF's name belongs in
the copyright notice.

> This would seem to be the case for a significant amount of code
> developed by ASF committers. We *want* to create code that will belong
> to the "ASF Community".

The word "belong" has many meanings. The copyright law specifies that the
initial owner of a copyrightable work is its author. 17 USC 201(a) and (b).
The copyright law doesn't speak directly about what we *want*.

> Isn't the ASF legally entitled to specify any preconditions it wants to
> before accepting donated works? And that those preconditions can
> include:
> * that the author of the work grant the ASF a copyright on the work in
> addition to their own copyright, 

I'm not sure what you mean by "in addition." Typically there is only one
"owner" of a copyright at a point in time. Do you mean "assign the copyright
to ASF with a license-back to the Contributor?" 

It is certainly possible for ASF to specify preconditions before accepting
donated work, but I would discourage Contributors who are my clients
(particularly corporate entities) from agreeing to assign their copyrights
to ASF or anyone else except in very limited circumstances. 

Before you start flaming me, I admit that many people (Roy is not alone!)
believe that open source licensing is made easier by copyright assignment.
But I don't agree with their analysis under most circumstances. 

ASF intends to in-license Contributions and then to out-license copies as
well as collective and derivative works of those Contributions. The
in-license can be the Apache License 2.0 (or the BSD license, or any of a
number of licenses you agree to accept that are compatible with your
out-license). The out-license is currently the Apache License 2.0. 

Eventually ASF will probably need the right to change the Apache License 2.0
as ASF's needs change. That result can be accomplished by obtaining an
agreement to permit that from the Contributor to ASF. [A sample Contributor
Agreement to do that that's only a couple of paragraphs in length is
attached.]

The only important reason I can think of to assign a copyright to ASF is if
a Contributor wants to relieve himself of any further responsibility to
defend that copyrighted work in court and wants to allow ASF to sue to
enforce the copyright. (Even those things can be handled by an exclusive
contract between the Contributor and ASF, but a copyright assignment is
simpler if those are the only additional things you need to do.) When it is
clearly to the Contributor's advantage to do so, then ASF ought to accept
copyright assignments. But how much copyright litigation do you really
expect to happen with Contributions? And does ASF want to accept
responsibility to defend its Contributors' copyrights in court?

> and
> * that the author grants the ASF the right to move the existing
> copyright statement to an external file.

Nothing today restricts the right of ASF to make copies of copyright notices
into an external file. That's part of your right under the Apache License 2.
0 to make copies of any portion of the source code of any Contribution you
receive. Make all the copies of those notices you wish. 

I caution you, however, against removing or altering copyright statements
already in the source code. That can affect your later ability to trace the
provenance of Contributions. It can cause confusion if Contributors seek to
license that same code to others in addition to their license to ASF. It can
potentially even affect the Contributors' rights to protect their own
copyrights in court if they acquiesce in the removal or alteration of their
copyright statements. (17 USC 405(c)). Why do it? 

Of course, if ASF owns the copyright (directly or through assignment), you
can place the ASF copyright notices anywhere you want and delete any notices
you want. The provenance, for all intents and purposes, only has to be
traceable back to the current owner of the copyright.

> As is mentioned, there is the matter of community/identity and free
> software "principles". I certainly would not feel happy about
> contributing my time to improving code whose *only* copyright statement
> referred to some large commercial entity. That doesn't mean removing all
> acknowledgement of the original contributor.

I encourage you to place the following notice all over any original,
collective or derivative works created by ASF or assigned to ASF:

     Copyright 2005 Apache Software Foundation.

Don't hide it. Make it prominent all over the ASF website, on every download
page, in your documentation and press releases. I'm all in favor of
community identity and free software principles.

You don't need to place copies of your Contributors' copyright notices in
those places. 

Just don't change the copyright notices already placed in the source code by
your Contributors. That's what I mean by "just leave them alone."

> If we are talking about copyrights added for each bugfix or minor
> improvement:
>   Copyright 2001 Big Corporation Ltd
>   Copyright 2002 John Smith [bugfix #12345]
>   Copyright 2002 Sue Smith  [bugfix #12346]
>   Copyright 2003 Acme Corporation [added comments]
> this seems likely to destroy all sense of community.

Why should it? These notices are *only* in the source code. They help us
identify the provenance of the code. They tell us that various individuals
or companies want to take credit for contributing code or bugfixes to ASF.
Those are all positive statements about the strength and broad scope of the
ASF community. [I do not pass judgment on whether John and Sue have
contributed sufficient copyrightable subject matter to deserve a copyright
in their bugfixes. By leaving copyright notices intact in the source code,
neither does ASF pass such judgments.]

/Larry

Lawrence Rosen
Rosenlaw & Einschlag, technology law offices (www.rosenlaw.com)
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242  ●  fax: 707-485-1243
Author of “Open Source Licensing: Software Freedom 
               and Intellectual Property Law” (Prentice Hall 2004)
 

> -----Original Message-----
> From: Simon Kitching [mailto:skitching@apache.org]
> Sent: Saturday, March 05, 2005 4:18 PM
> To: legal-discuss@apache.org
> Subject: RE: Copyright text, and javadoc license
> 
> Hi Lawrence,
> 
> Thanks very much for your informative email.
> 
> On Sat, 2005-03-05 at 08:24 -0800, Lawrence Rosen wrote:
> > An ASF copyright notice can be placed only (1) on the ASF website itself
> and
> > on related expressive pronouncements of the ASF board of directors, its
> > officers or agents created on behalf of ASF and published to the world
> as
> > ASF's "voice"; (2) on the CVS data bases containing the Contributions
> > collected, selected and arranged in accordance with ASF-authorized
> > processes. The former are generally *original work* copyrights; the
> latter
> > are *collective work* copyrights. (A more general term for collective
> works
> > under US copyright law would be a *compilation work* but that's not an
> > important distinction for this thread and would be confusing to all
> > programmers.) In some cases, third parties or the ASF itself may create
> > modifications of (1) and (2). Only if ASF itself does the modification
> may
> > it (3) place its *derivative work* copyright notice on that work. See 17
> USC
> > 101.
> 
> I presume (as Roy Fielding mentions) that there is also the possibility
> for the author of a work to assign copyright to the ASF? In which case
>  Copyright 2005 The Apache Foundation
> would be the correct copyright statement to include in the file?
> 
> This would seem to be the case for a significant amount of code
> developed by ASF committers. We *want* to create code that will belong
> to the "ASF Community".
> 
> > ASF will not remove (indeed, should not remove) any pre-existing
> copyright
> > notices.
> 
> Isn't the ASF legally entitled to specify any preconditions it wants to
> before accepting donated works? And that those preconditions can
> include:
> * that the author of the work grant the ASF a copyright on the work in
> addition to their own copyright, and
> * that the author grants the ASF the right to move the existing
> copyright statement to an external file.
> 
> It seems to me that this is what the current policy (as explained by
> Jennifer) does. Is this not legal? Or is it just that the ASF hasn't
> properly got contributor's agreement to this?
> 
> And if an author has granted the ASF copyright on a work, then isn't the
> ASF entitled to insert their copyright statement into the work even if
> no other modification has been made to it?
> 
> BTW, isn't this "grant of copyright" what GNU insist on for its
> contributors?
> 
> > You are absolutely right that it would be improper to place an ASF
> copyright
> > notice on files that are "contributed in their entirety and are not
> modified
> > by ASF or other contributors." What I don't then understand is why the
> ASF
> > should want to change those existing copyright notices at all. Just
> leave
> > them alone.
> >
> 
> As is mentioned, there is the matter of community/identity and free
> software "principles". I certainly would not feel happy about
> contributing my time to improving code whose *only* copyright statement
> referred to some large commercial entity. That doesn't mean removing all
> acknowledgement of the original contributor.
> 
> Having said that, if we are talking about having two copyrights on some
> files, eg
>   Copyright 2001 Big Corporation Ltd
>   Copyright 2001-2005 The Apache Software Foundation
> then this seems reasonable acknowledgement for large contributions of
> code initially developed outside the ASF. Is this what you mean by "Just
> leave them alone"?
> 
> If we are talking about copyrights added for each bugfix or minor
> improvement:
>   Copyright 2001 Big Corporation Ltd
>   Copyright 2002 John Smith [bugfix #12345]
>   Copyright 2002 Sue Smith  [bugfix #12346]
>   Copyright 2003 Acme Corporation [added comments]
> this seems likely to destroy all sense of community.
> 
> Regards,
> 
> Simon
> 
> 
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