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From Robert Burrell Donkin <rdon...@apache.org>
Subject Re: Open Contribution: Question about clarifying license status of code contributed in email and mail-lists
Date Thu, 06 Nov 2008 21:13:43 GMT

On Fri, 2008-11-07 at 01:02 +1100, David Crossley wrote:
<moved>
> * Are the words that Rick has suggested suitable
> for that purpose?
</moved>

> Sam Ruby wrote:
> > Rick Jelliffe wrote:
> > >
> > > Member David Crossley suggested that it might useful to bring up an issue on
> > > this list.
> > >
> > > I represent some long running open source projects, and recently we have
> > > been working through some issues with an eye to becoming an Apache project
> > > at some stage.
> > >
> > > What is the problem trying to be solved?  That *perhaps* the law (in some
> > > jurisdictions) will not recognize that submitting code in a mail-list or
> > > other forum to an open source project (for a bug fix or enhancement or
> > > technique) by some-one who knows that the project is open source and whose
> > > intent is obviously that this code could be used (otherwise why would they
> > > submit it?) does not thereby give permission to use it. (IANAL but this
> > >  seems entirely dubious to me, though perhaps if it is being done on company
> > > time there may be some other  angle.)  So therefore, regardless of whether
> > > the Apache project takes off, we might do well to err on the side of caution
> > > and make any permissions explicit on our non-Apache or pre-Apache
> > > mail-lists.

AL2 covers this eventuality by clause 5: derived works submitted are
covered by this clause in the original license. a more important issue
is whether the contributor has the permission required to contribute.

> > > So I am investigation this approach: all the mailing lists to include
> > > notices as part of sign-up noting that it is a condition of usage that
> > > sending code involves permission to use.

AIUI there is some dispute how this kind of setup would work in the
event of a copyright dispute

> > > IANAL, but I am thinking along these lines:
> > >
> > > "Open Contribution: 1) By subscribing to this list or forum, the subscriber
> > > grants permission to use any code samples, algorithms, methods, data
> > > structures, text, bug statements, instance fragments or other material
> > > posted to this list in any project with a license approved by the Open
> > > Source Initiative (http://www.opensource.org/licenses).

i think that this wording may be potentially dangerous for any AL2'd
project:

<blockquote cite='http://www.apache.org/licenses/LICENSE-2.0.html'>
> 5. Submission of Contributions. Unless You explicitly state otherwise,
> any Contribution intentionally submitted for inclusion in the Work by
> You to the Licensor shall be under the terms and conditions of this
> License, without any additional terms or conditions. Notwithstanding
> the above, nothing herein shall supersede or modify the terms of any
> separate license agreement you may have executed with Licensor
> regarding such Contributions.
</blockquote>

the above covers only "use" and does not cover submarine patents. the
langauge could be tightened up ("the submitter offers a perpetual and
irrevocable license at no cost under the OSI approved license of the
licensee's choice" perhaps but IANAL) to achieve the aim but this would
end up being much wider than AL2 and may be unacceptable for some
contributors. for example, the GPL2 offers quite a wide patent grant.

> > > 2) The user further agrees to sign any explicit contributor agreement,
> > > should this be required by such projects, if asked, without giving up their
> > > own copyright.

i think that this may be an unreasonable clause. contributors may be
able to sign software grants or CCLAs but not CLAs.

> > > 3) Nothing in this note should be construed as implying any lack of implied
> > > permission to use such material in this list or forum before this note was
> > > published."

again, i think the langauge could be improved by a lawyer but i'm not
sure that it's necessary

> * Should this also be added to all ASF lists?

IMHO not in it's current form

i am in favour of exploring something more informational and less
contractual suitable for all lists: asking people to read and understand
the apache license plus contributor pages before posting code.

for example, infastructure is hassled every month or two by someone who
wants a mail deleted. it would be useful to let users know that this is
a public list which is archived widely to create a public record of the
project and that apache has a very limited deletion policy.

- robert

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