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From "Jim Barnett" <j...@bea.com>
Subject RE: Corporate Contributions
Date Mon, 21 Mar 2005 18:55:01 GMT
Greg:

I think the CCLA-ICLA structure is in tune with ASF's intent, and in
fact represents the only reasonably *safe* way to effectuate that
intent.  By way of background, Larry Rosen is spot-on on the reason the
CCLA-ICLA structure exists.  In addition to the Copyright Act sections
he cites, under the labor laws of most states works created by an
employee within the scope of his or her agency, or within his or her
employer's current or reasonably foreseeable future lines of business,
are property of the employer, not the employee.

That means that each time ASF receives a contribution from an individual
who happens to be and employee rather than an independent contractor, in
the absence of a CCLA from the employer, there is a significant risk
that the project incorporating that contribution may become tainted by
the employer's superior rights in the contribution.  (SCO's assault on
Linux, anyone?)

The CCLA-ICLA structure has other benefits.  Because ASF is in the lead
among OSS organizations in recognizing this risk and dealing with this
risk via its contribution policies, ASF-sponsored software is perceived
as "safer" to import into commercial products than OSS not benefiting
from this level of precision in filtering contributions using proper
licensing agreements.

The CCLA-ICLA structure is certainly not foolproof.  Individuals
(intentionally or, more likely, unintentionally) may not disclose their
employment status at the time of contribution.  In some cases
employee-contributors may sign ICLAs when their employers have not
executed corresponding CCLAs.  In that case, the only assurance ASF (and
its downstream licensees) have is the representation made in the ICLA by
the contributor that he or she has the right to make the contribution.

Could the CCLA-ICLA structure be beefed up to make ASF code *safer*?
Sure it could.  But at what cost?  It's a bit of a teeter-totter.  The
safer you make the contribution side of things by adding process and
documentation, the greater the potential for deterring the free flow of
ideas and contributions.  No one likes bureaucratic hassles; not even
lawyers.  But I think ASF has taken very important steps in its
CCLA-ICLA structure to balance the "tainting risk" issue and the desire
to avoid unnecessary bureaucracy.

Regards,

Jim           



  

-----Original Message-----
From: Greg Stein [mailto:gstein@lyra.org] 
Sent: Sunday, March 20, 2005 1:45 PM
To: Lawrence Rosen
Cc: legal-discuss@apache.org
Subject: Re: Corporate Contributions

Well, yeah. My point is that the *intent* is to accept contributions
from
individuals. The CCLA is a mechanism to enable that, but it is not the
focus or the driver. We want to stress the individual, not the means to
that end.

Cheers,
-g

On Sun, Mar 20, 2005 at 01:24:21PM -0800, Lawrence Rosen wrote:
> Greg Stein wrote:
> > But legalese be damned... the philosophy and intent of the ASF is to
> > accept IP from individuals. Only.
> 
> Legalese cannot be damned so easily. The fact is that the individual's
> employer automatically owns the IP and the individual cannot legally
> contribute the software to ASF or anyone else without her employer's
> permission. Under the law in the United States, it is the employer's
> contribution to make or to refuse. (17 USC section 201(b).)
> 
> /Larry
> 
> Lawrence Rosen
> Rosenlaw & Einschlag, technology law offices (www.rosenlaw.com)
> 3001 King Ranch Road, Ukiah, CA 95482
> 707-485-1242  ?$B!|  fax: 707-485-1243
> Author of ?$B!HOpen Source Licensing: Software Freedom 
>                and Intellectual Property Law?$B!I (Prentice Hall 2004)
>  
> > -----Original Message-----
> > From: Greg Stein [mailto:gstein@lyra.org]
> > Sent: Saturday, March 19, 2005 10:01 PM
> > To: Phil Steitz
> > Cc: legal-discuss@apache.org
> > Subject: Re: Corporate Contributions
> > 
> > On Sat, Mar 19, 2005 at 10:42:28PM -0500, Phil Steitz wrote:
> > >...
> > > That's what I thought, and that's what the licenses web page
> > > (http://www.apache.org/licenses/#clas) says, but the text of the
CCLA
> > > begins like this:
> > >
> > > Thank you for your interest in The Apache Software Foundation (the
> > > "Foundation").  In order to clarify the intellectual property
license
> > > granted with contributions of software from any person or entity
> > > (the "Contributor"), the Foundation would like to have a
Contributor
> > > License Agreement on file that has been signed by the Contributor,
> > > indicating agreement to the license terms below.  This license is
for
> > > your protection as a Contributor of software to the Foundation and
does
> > > not change your right to use your own contributions for any other
> > purpose.
> > >
> > > In this case the signatory is the corporation.  The language would
seem
> > > to suggest that the corporation is in fact contributing directly.
> > 
> > The legal language would say that because the corporation is the
original
> > owner of the IP. The CCLA is intended to enable the individuals to
sign
> > their ICLA, which states the individual has the right to provide the
IP to
> > the ASF.
> > 
> > >From a legal standpoint, the CCLA is saying the corp can
contribute, but
> > we don't accept contributions from them. Instead, we accept the
> > corporations's IP from individuals (their employees). We accept that
> > contribution under the language of the ICLA.
> > 
> > But legalese be damned... the philosophy and intent of the ASF is to
> > accept IP from individuals. Only.
> > 
> > Cheers,
> > -g
> > 
> > --
> > Greg Stein, http://www.lyra.org/
> > 
> >
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educational
> > only, are not privileged and do not constitute legal advice.
> >
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> 
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-- 
Greg Stein, http://www.lyra.org/

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