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From "Lawrence Rosen" <lro...@rosenlaw.com>
Subject RE: Use of proprietary binaries
Date Sun, 23 Nov 2008 19:39:55 GMT
Ralph Goers wrote:

I think you are splitting hairs. "the implementation can be replaced"
amounts to pretty much the same thing as the dependency can't be used. In
fact, the way I read the original question it sounds like IBM is providing
the API interface (not just the implementation) under an unacceptable
license. I'm not sure how you get around that.

 

Now I'm confused. So perhaps it is time for me to add to the confusion.

 

An application programming interface (API) is a set of functions,
<http://en.wikipedia.org/wiki/Subroutine>  procedures, methods, classes
<http://en.wikipedia.org/wiki/Class_%28computer_science%29>  or protocols
<http://en.wikipedia.org/wiki/Protocol_%28computing%29>  that an operating
<http://en.wikipedia.org/wiki/Operating_system>  system, library
<http://en.wikipedia.org/wiki/Library_%28computer_science%29>  or service
<http://en.wikipedia.org/wiki/Service_%28systems_architecture%29>  provides
to support requests made by computer programs
<http://en.wikipedia.org/wiki/Computer_program> .

[http://en.wikipedia.org/wiki/API]

 

Under US copyright law, such things are not subject to copyright:

 

In no case does copyright protection for an original work of authorship
extend to any idea, procedure, process, system, method of operation,
concept, principle, or discovery, regardless of the form in which it is
described, explained, illustrated, or embodied in such work.

[17 USC 102(b)]

 

What then is IBM claiming? 

 

*	Any IBM API (as defined above) can be independently implemented or
enhanced by Apache or anyone and we can accept any such independent
contributions without worrying about copyright infringement of IBM's APIs
(per 17 USC 102(b)). 

 

*	However, if an API is subject to IBM's patent claims, then IBM can
stop anyone (including Apache and our contributors/customers) from using any
implementation of that API. That is why we ask IBM-and all contributors-for
CLAs or patent licenses/covenants that are consistent with the Apache
License. IBM and many other companies have been very generous to Apache with
their patents when asked.

 

It is always important to keep our contributors' potential copyright claims
separate from their patent claims and to classify them properly. Otherwise,
we'll be asking for licenses we don't actually need. That isn't what
"software freedom" is supposed to be about. 

 

To misquote the old Santa Claus line, "Yes, Virginia, there is a public
domain of ideas and APIs, and Apache ought to feel free to implement them
without asking for permission."

 

But maybe I'm misunderstanding your questions about this....

 

/Larry

 

 

 

  _____  

From: ralph.goers @dslextreme.com [mailto:ralph.goers@dslextreme.com] 
Sent: Sunday, November 23, 2008 4:32 AM
To: legal-discuss@apache.org
Subject: Re: Use of proprietary binaries

 

 

On Sun, Nov 23, 2008 at 12:24 AM, William A. Rowe, Jr. <wrowe@rowe-clan.net>
wrote:

Oh it can be used.  If the license isn't appreciated, the implementation
can be replaced.

But can it be shipped?  Due to Henri's appropriate interpretation of 1.
below, the answer looks like a resounding "no".

 

I think you are splitting hairs. "the implementation can be replaced"
amounts to pretty much the same thing as the dependency can't be used. In
fact, the way I read the original question it sounds like IBM is providing
the API interface (not just the implementation) under an unacceptable
license. I'm not sure how you get around that.


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