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From Gianugo Rabellino <gian...@apache.org>
Subject Re: a note about indirect contributions
Date Tue, 22 Apr 2008 19:11:09 GMT

On Apr 22, 2008, at 8:42 PM, Roy T. Fielding wrote:
> On Apr 22, 2008, at 10:56 AM, Gianugo Rabellino wrote:
>> On Apr 22, 2008, at 5:21 PM, Doug Cutting wrote:
>>> Sam Ruby wrote:
>>>>> (to be perfectly clear, this is not the situation with  
>>>>> Sourcesense and Microsoft)
>>>> Agreed.  This particular scenario does not seem to directly  
>>>> apply to Sourcesense and Microsoft.  Separately, Roy has posted  
>>>> on poi-dev
>>>> http://mail-archives.apache.org/mod_mbox/poi-dev/200804.mbox/% 
>>>> 3c5D4680C0-1DF8-436B-8BBC-44CF62EBFBF9@gbiv.com%3e
>>> I don't see evidence in that message for the assertion that this  
>>> does not apply.  Roy states there that, "if SourceSense is indeed  
>>> being contracted by Microsoft for the purpose of contributing to  
>>> POI, then Microsoft is a Contributor and bound by the terms of  
>>> our license".
>>> So the bit of information I am missing is precisely what  
>>> Microsoft has contracted with Sourcesense.  The press seems to  
>>> imply the contract includes POI, doesn't it?
>>> http://www.microsoft.com/presspass/press/2008/ 
>>> mar08/03-25SourcesensePR.mspx
>>> What am I missing?
>> A long thread on dev@poi where the one and only relevant detail of  
>> the agreement was posted: Sourcesense retains the copyright to  
>> their contribution.
> Please read my message again, Gianugo.  The CLAs are both copyright  
> and patent
> licensing agreements, and Contributor is well defined by those  
> agreements.
> If you commit code that is covered by a Microsoft-controlled patent  
> while you
> are under contract with Microsoft to contribute to POI (no matter  
> how vaguely
> that is specified by Microsoft), then you are licensing Microsoft's  
> intellectual
> property as a joint Contributor.

I don't quite think this applies in general. Are you implying that  
any GSOC contribution actually has Google as a Contributor together  
with the sponsored individual, whatever the consequences are from a  
copyright/patent perspective? I'm fully with you on Work For Hire  
scenarios, but I wouldn't go as far as saying that any kind of  
contract means a joint contribution per se. And even then, I still  
don't understand your last sentence, unless the "you" in " you are  
licensing Microsoft's intellectual property as a joint Contributor"  
is a plural undetermined form such as "either Sourcesense or  
Microsoft, we don't care".

> If you don't have permission to do that from
> Microsoft, then you are responsible for the resulting infringements  
> -- not the
> ASF and not anyone who later receives software from the ASF.  You  
> are responsible
> for ensuring that your contract with Microsoft is sufficient to  
> allow you to
> contribute under the ASF's CCLA.

Fully agreed here. However, while it doesn't matter from a purely  
legal perspective, the user consequences should be considered from a  
general ASF business POV, as I assume we (as in the ASF) would have  
to withdraw the contribution.

> Whether or not Microsoft also owns or
> does not own the copyright is completely irrelevant -- it does not  
> shield
> Microsoft from being a willing party in the Contribution and the  
> resulting
> license of necessary patent claims.

I'm with you here, but only on Estoppel-ish grounds (http:// 
en.wikipedia.org/wiki/Estoppel). My roman law background makes me  
think that it takes more than an implicit and indirect consensus to  
form a legal agreement between two parties. The contracts between A  
and B and B and C don't necessarily imply a resulting transitive  
contract between A and C.

> By issuing that PR, Microsoft has acknowledged their intention and  
> consent
> for the technology to be a Contribution.  Sam, I suggest you print  
> it out and
> save it in our records, just in case.  Microsoft's clear intent to  
> contribute
> these technologies by "Donating code to an established, consensus- 
> driven
> organization such as the Apache Software Foundation" is more than  
> enough
> to stop any later claim of patent (monopoly) infringement.

+1, but again I would consider this a very specific case and I  
wouldn't arrive as far as saying that any funded contribution carries  
an implicit patent grant and the implicit Contributor role for what  
looks to me like a third party.

Then again, I recognize I might be completely wrong with my more than  
non-existent understanding of US contract law. And I'd just love to  
be proven wrong as this would streamline immensely our IP duties.

Gianugo Rabellino
Sourcesense - making sense of Open Source: http://www.sourcesense.com
Blogging at http://boldlyopen.com/

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