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From Apache Wiki <wikidi...@apache.org>
Subject [Legal Wiki] Update of "Ramblings" by SamRuby
Date Wed, 19 Mar 2008 22:58:58 GMT
Dear Wiki user,

You have subscribed to a wiki page or wiki category on "Legal Wiki" for change notification.

The following page has been changed by SamRuby:
http://wiki.apache.org/legal/Ramblings

New page:
= Precession of the Perihelion of Mercury =

== Preface ==

Everybody agrees that the coastline of Australia is longer than the coastline of Cuba.  Similarly,
the coastline of Japan is longer than the coastline of Australia.  Wait... what?  The [https://www.cia.gov/library/publications/the-world-factbook/fields/2060.html
CIA says so], so it must be true.  Furthermore, it turns out that the [http://en.wikipedia.org/wiki/How_Long_Is_the_Coast_of_Britain%3F_Statistical_Self-Similarity_and_Fractional_Dimension
length of a coastline depends on how you measure it].

What does that have to do with licensing?  Most third party licensing questions are of the
form:

  Can ASF Project "A" do "B" with "C", which is licensed as "D"?

The answer is that simple rules and gross approximations often gives the right answer in both
cases.  Like comparing Cuba and Australia, for example.  In some cases, however, such rules
and approximations give the wrong answer.  And in rare cases, the answer itself depends on
how the question was asked.

This is meant to be a lighthearted and sometimes sideways introduction to what is a complex
and often contentious subject.

== Approximation 1 ==

The first approximation to the Third Party Licensing Policy is that the ASF must be able to
distribute works created within an Apache Project solely under the [http://www.apache.org/licenses/LICENSE-2.0
Apache License, Version 2].  And furthermore, any dependencies that such Works might have
must be licensed under similar terms.  This is an ideal that is both highly desirable and
yet not 100% consistently met -- at least not in full, when you consider recursive dependencies.

For this approximation, the sole determinant is the license (the "D") in the statement above,
and the question arises: what are "similar" terms?

I look at it this way: Apache type licenses are a universal donor.  Such code can be given
to anybody.  GPL type licenses are closer to being a universal recipient, at least within
the domain of open source.  Such code can be combined with a wide range of open source code.

The FSF provides us with a [http://www.fsf.org/licensing/licenses/quick-guide-gplv3-compatibility.png
good visual aid] for this.  Note how all the arrows are one way.

For us to remain a universal donor, our products must remain [http://en.wikipedia.org/wiki/Antigen
antigen] free.  This leads naturally to the definition of [http://people.apache.org/~rubys/3party.html#category-a
Category A: Authorized Licenses].

== Approximation 2 ==

The first approximation gives a lot of good answers, but a few wrong answers.  For starters,
antigens aren't all bad.  The [http://www.apache.org/licenses/LICENSE-2.0 Apache License,
Version 2] has a patent termination clause.  That clause coupled with [http://www.apache.org/licenses/#clas
Contributor License Agreements] is part of a larger strategy which keeps the blood supply
safe from other dangers.

This means that while category A licenses are perfectly acceptable in small doses, heavy dependencies
on works made available under such licenses will dilute the patent liability limitations that
the ASF so carefully engineered into its license policy.

The flip side of this is also true.  Non-category A licenses may be perfectly acceptable,
depending on ''how'' they are [:3party/context:used].  In case you hadn't noticed, that's
the "B" in the statement above.  Incorporating a Work in order to implement a core function
in a way that is difficult to extract is a very different thing that having an optional plugin
that allows integration with another product.  That continues to be true even if that product
that is made available under an [http://people.apache.org/~rubys/3party.html#category-x excluded
license].  Or even a proprietary, non-open source one.

A concrete example of this is the [http://tomcat.apache.org/tomcat-3.3-doc/NT-Service-howto.html
Jakarta NT Service].  A [http://servicemix.apache.org/jboss-deployer-for-20.html JBOSS deployer]
is another.  To borrow a phrase from another aspect of law, as long as there is a [http://www.lectlaw.com/def/i041.htm
substantial non-infringing use] without these plugins, these uses are not only OK, they are
positively aligned with the goal of being a universal donor.  Some care must be taken in documenting
how this is done, of course.

So the second approximation is a matrix.  Rows are licenses.  Columns are uses.  Initially
the matrix is sparse, but over time it can be filled in with "always OK" and "never OK". 
Some of the answers will have an asterisk beside it.  When organized this way, you can start
to see some licenses are inert gases, while others are positively radioactive, and categories
will emerge.

And just when you think you can get a handle on this, people invent new licenses, new [http://mail-archives.apache.org/mod_mbox/www-legal-discuss/200803.mbox/%3c47DEB046.10004@dubioso.net%3e
clauses], and new [http://mail-archives.apache.org/mod_mbox/www-legal-discuss/200802.mbox/%3cE1A2049F-5D7B-44F7-A1E3-B9645BC52348@yahoo.com%3e
exclusions].  And new [http://markmail.org/message/7no3tdx6nh37stpw uses].

== Approximation 3 ==

Asterisks were mentioned above.  On a few licenses and uses, the asterisks seem to multiply
like dandelions.  Examples: a column that deals with hard dependencies on proprietary products
that are distributed free of cost for a wide range of uses; and a row that deals with GPL
based licenses with [http://www.gnu.org/software/classpath/license.html classpath] or [http://www.gnu.org/licenses/lgpl.html
usage as a library] exceptions.

Java and C# are prime examples.

At first, it is tempting to try to define this in terms of the types of [http://people.apache.org/~rubys/3party.html#options-systemrequirements
usages].  But increasingly you find that it is difficult to distinguish the acceptable usages
from the unacceptable usages in this manner.  Ultimately, it turns out to be simpler to simply
enumerate the acceptable products.  That's the "C" in the description above.

The distinguishing characteristic tends to be something entirely outside of the license and
outside of our control.  Charateristics that deal with attributes like ''ubiquity'' and ''standards''.
 Is the product ubiquitous enough to be something that it can be presumed to already be installed
in the target environment?  Is the ASF code interacting with this product using "standard"
interfaces that were explicitly designed to enable what the ASF product is trying to do? 
Note: I put "standard" in scare quotes as this question needs to be explored without the burden
of trying to figure out whether or not the ASF endorses any particular standards body.  For
these purposes, any architected interface will do.  More simply: are we employing or extending
the product in the way it was intended?

So [http://logging.apache.org/log4j/ log4j] depending on Java is clearly OK.  It even is clearly
marked as such.

When faced with the question of whether or not Hibernate could be considered a system dependency
or not, the Incubator simply stated that Roller could not bundle and ship Hibernate.  This
lead to [https://issues.apache.org/roller/browse/ROL-1447 this issue], which was based on
the observation that much of the target audience for Roller did not have Hibernate already
installed, and merely were interested in installing it for the purposes of supporting Roller.

Needless to say, these types of discussions and decisions are difficult for everybody involved.
 And should only be reopened based on a specific request from a PMC.

== Approximation 4 ==

If you see the pattern, there is only one letter left.  "A".  Given that we are all ASF projects
here, there can't be a case where two ASF product wanting to use the same product (with obviously
the same license) in the same manner ends up with the answer that it is OK in one and not
OK in the other, can there?  Actually, it is rare, but possible.

[http://incubator.apache.org/lucene.net/ Lucene.Net] has a hard dependency on the [http://msdn.microsoft.com/netframework/
Microsoft .NET Framework].  As described above, that's quite OK.  And again, the dependency
is clearly marked, so those not interested in this podling will simply not participate.

On the other hand, changes to httpd to make use of a similar dependency would likely result
in a fork.  For a while, Open Office faced a similar [http://msdn.microsoft.com/netframework/
controversy], and that lead to the mail merge component being rewritten in Python and ultimately
may have contributed in a small way to the formation of the [http://openjdk.java.net/ OpenJDK].

And, clearly, [http://tomcat.apache.org/ Tomcat] is exactly one such a "fork".  One that is
doing quite well.  The point here is that there will be times when protecting the option to
NOT make use of a third party library is as important as protecting the option TO make use
of a third party library.

== Approximation 5 ==

OK, I'm out of letters.  But still not everything quite fits.  [http://santuario.apache.org/
Santuario] has to deal with [http://www.apache.org/licenses/exports/ regulations] that aren't
copyright, patent, or even license related.  HTTPD has dealt with a similar situation by providing
[http://httpd.apache.org/download.cgi separate downloads].

The title at the top of this document pays homage to an [http://en.wikipedia.org/wiki/Tests_of_general_relativity
observed phenomenon] that helped cause Newtonian mechanics to be replaced by General Relativity.
 An [http://www.whatquote.com/quotes/Thomas-Henry-Huxley/2264-Science-is-organized.htm ugly
fact] as it were.  Note that Newtonian mechanics is still taught today as it still produces
quite useful answers in a large range of applications, but where the answers that General
Relativity provides are different than the ones that Newtonian mechanics provides, the former
is more often the correct one.

Now I don't pretend to presume that this brain fart compares in even the slightest way to
the significance of General Relativity.  To be honest, I simply sprinkled in science metaphors
to spice up an otherwise dry subject, and also to give credibility to the notion that some
things that may seem initially to defy [http://www.thegardenoftheheart.com/Daily_Thoughts/CommonSense.html
common sense] from one perspective may actually be the '''only''' sensible position from a
completely different perspective.

And on that topic, while Newton's Gravity was the "downfall" of Newtonian Mechanics, Quantum
mechanics will likely revolutionize Relativity.  In Quantum mechanics, the [http://en.wikipedia.org/wiki/Double-slit_experiment
role of the observer often affects the properties of the observed].  The ASF's decision to
pursue Java and XML have had a profound affect on both of those subjects.  (Perhaps not as
much as we [http://www.apache.org/jcp/sunopenletter.html might have hoped], but substantial
nevertheless).  This means that from time to time we should allow ourselves to pursue carefully
selected initiatives that defy all of the above criteria.

== Epilogue ==

Even with the above disclaimer, this entire ramble is too pretentious for my tastes.  What
I really want to do is to make quick work of [:OpenLegalQuestions:questions on this list].
 I believe that in order to do so, having the flexibility of being able to merely say that
"Java based projects are welcome here", or "anything written in Ruby and made available under
the Ruby license is OK as a dependency for a project written in Ruby".

The reason I want to do so is simple: the boundary between what is and what is not a part
of the Ruby runtime is blurry; the intentions of the authors of any such Gem is clear; and
frankly, such a statement is very much in line with what licensees of Ruby code expect.  Such
a statement also avoids spending any energy trying to fit the either the Java or Ruby licenses
into one of the existing categories (or, ''*shudder*'' alternately, modifying the definition
of one or more categories to accommodate Ruby), which would be tantamount to trying to decide
how we should handle TCL code that is licensed under the Ruby license.

=== Differences ===
To a high degree of approximation, this approach described by this page matches the [http://people.apache.org/~rubys/3party.html
Draft Third-Party Licensing Policy].  Key differences:
 * This page contains a complete lack of phrases such as "must be removed before the earlier
of one year or two major releases".  If an existing project has been making releases for an
extended period of time without significant objections by either contributors or licensees,
I feel that there is no reason to intercede.
 * This page lacks any specifics on Category B or how to handle third party scripts.  I'm
not prepared to declare consensus on these issues, and the appropriate way to handle these
cases may very well be context specific.
 * This page explicitly acknowledges that decisions may not be consistent across all projects
and all time, while at the same time attempting to minimize and constrain the times that this
may occur.

=== Statement of Intent ===

 * The overriding goal is to remain a universal donor.  While PMCs will be expected to balance
developers' and licensees' needs, in questions relating to third party licensing matters,
the Legal Affairs Committee will focus mostly on ensuring that the entire rage of the needs
of licensees, ranging from the most risk adverse corporations to the most activist members
of the Free Software Movement, are met.
 * The ASF is all about voluntary contributions, and intends to obey the constraints expressed
by the copyright holder when redistributing their work.
 * All decisions will be made and posted publicly.
 * As much as humanly possible, everything will be by consensus of the Legal Affairs Committee,
though possibly via [http://www.apache.org/foundation/voting.html#LazyConsensus Lazy Consensus].
 If there ever is a time that consensus can't be reached, the decision will fall to the Chair
who will keep the board informed on any such issues.
 * PMCs will be encouraged to provide specific questions.  Questions of the form listed above
will take priority over "here's a problem, solve it for me" types of open ended questions.
 * A key part of the third party licensing policy will be the establishment and policing of
specific policies for NOTICE, LICENSE, and README files.

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