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From "William A. Rowe, Jr." <wr...@rowe-clan.net>
Subject RE: Corporate Contributions
Date Fri, 25 Mar 2005 23:55:42 GMT
At 03:49 PM 3/25/2005, Jim Barnett wrote:

>I also agree that ASF should disclaim liability to the fullest extent
>possible.  ...  General disclaimers published on a website, however,
>are not as effective at limiting exposure.

Jim you have totally missed the boat here.  Please read the CLA
you signed.  Understand that you OWNED the responsibility to grant
us license and the you OWNED the authority to do so, when you signed
the CLA.

We do not disclaim liability in the sense you are thinking, by posting
notices on our web site.  We disclaim liability because it *is* the
liability of our contributors.

At times, without the contributor's intent, it may be that they
independently discover the patently obvious and previously (or in the
one year window) Patented invention, committing it to our repository.
In that case, the ASF would either contest the patent, appeal to the
holder for License, or remove the patented invention from our code.  
If none of these three solutions satisfied the patent holder, they
would have to prove injury to themselves and profit to the Foundation.
The foundation doesn't profit so this would be a hollow lawsuit, and
we would pursue through our legal team that the patent is invalid 
because it was too obvious to be patentable.

Let's say that the contributor was -aware- of the patent and took the
idea from the patent holder, and that it is a defensible patent.  In
that case, it actually becomes a matter that the contributor has broken
patent law, and further, that they broke their contract with the ASF. 
Further action against the ASF would be partially mitigated by the breach 
of contract against us, and we would argue an innocent party defense.
In fact, if there is a finding against the foundation, and the committer
malevolently contributed the IP, you could see the Foundation suing the
committer for breach of contract and resulting damages.  (If there was 
no malice this would simply not happen.)

Just to give you an example, let's say back in the day you had blogged 
diatribes against the RSA's patent for RC5, and later committed some
RC5 - derivative code to our code base without informing the ASF of the
questionable providence.  You shouldn't be surprised if, after choosing 
the ASF as your personal guinea pig, the ASF turns around and sues you 
- after it has lost the suit by the RSA.  You are no longer an innocent

Similar can be said for Copyright violations.

>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.

++1, but for the fact that it has to be vetted.  That FAQ could be
dragged into court at a later date as a statement by the Foundation.

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