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From "Roy T. Fielding" <field...@gbiv.com>
Subject Re: CCLA: "by combination" language
Date Thu, 01 Jun 2006 02:32:08 GMT
On May 31, 2006, at 4:36 PM, Doug Cutting wrote:

> Cliff Schmidt wrote:
>> In simpler  terms, one cannot grant a license for their  
>> contributed framework  without also granting a license for the  
>> right to use that framework  with future contributions to the Work.
>
> I'm not questioning how the "combination" affects what software the  
> free license covers.  I think it's reasonable for the free license  
> to cover all future versions of the project.  My question is  
> limited to the determination of *which patents* are covered by the  
> free license.
>
> Roy seemed quite clear on this:
>
>   The clause is intended to exclude third-party
>   contributions after the fact causing the infringement;
>   that is the *only* reason we include the words "to which
>   such Contribution(s) were submitted". Those words serve no
>   other purpose than to limit the scope of the patents that
>   infringe to claims that are potentially knowable by the
>   contributor.  Note that this limits the number of patents
>   that infringe, not the number of Works to which the
>   license is granted
>
> Do you differ with Roy on this point?

I guess so, though quite frankly it doesn't matter what Cliff's
interpretation of the clause may be.  The only way to test it is
to see what happens after someone who has signed the CCLA tries
to sue the ASF (or a recipient) over a patent that they claim a
given ASF work infringes.  When that happens, the court is going to
care about things like the opinion of the signer of the CCLA,
the intent of the drafter of the CCLA, and the intent of the
contributors.  My opinion on the matter is a public record already,
with a very long history behind it and a very specific use case
excluded.  As such, whatever our lawyers think, it is very unlikely
that the CCLA can be imposed any more strictly upon the signatories
than it was intended to be imposed by me.  The CCLA will have to be
changed if folks want to broaden its interpretation.

Cliff, how we interpret the terms of a contract is not "policy".
Policy would be choosing which CCLA to require of contributors,
such as by changing the CCLA or issuing an addendum that is agreed
to as well.  If the wording is unclear on its own, a court should
interpret the wording to the benefit of the contributor (against us).

> Why then are there equally large companies with large patent  
> portfolios and active Apache contributors but no CCLA on file?

Because they have permitted their employees to contribute the company's
IP under the terms of the ICLA.  They are well aware of that fact and
just as bound by it as they would be by signing a CCLA -- a corporation
cannot disclaim responsibility for the actions of its own employees
even when they aren't entirely aware of those actions, since the
corporation is inherently responsible for its own (lack of) oversight.

For example, if an employee of a company illegally dumps hazardous
waste generated by the company, both the employee and the company
are held responsible even if the company has a written policy
forbidding such illegal dumping.  For similar reasons, a company
would not be able to successfully sue the ASF for making use of a
license given to the ASF by one of that company's own employees,
particularly when they are aware of such contributions and of
the purpose of the ASF.

....Roy

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