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From "Lawrence Rosen" <lro...@rosenlaw.com>
Subject RE: License under which the Apache License 2.0 is released?
Date Wed, 03 Oct 2012 22:38:28 GMT
Noah Slater wrote:

> So it seems the answer to our question is somewhere in state or 

> federal law, which I have no idea how to navigate.

 

Or in case law. See, e.g., Veeck v. Southern Building Code Congress
International, 293 F.3d 791 (5th Cir., 2002) (cert. denied).
[http://bulk.resource.org/courts.gov/c/F3/293/293.F3d.791.99-40632.html]

 

This is one of my favorite cases. It put standards organizations on notice
that they can't own the law.

 

/Larry

 

Lawrence Rosen

Rosenlaw & Einschlag, a technology law firm ( <http://www.rosenlaw.com>
www.rosenlaw.com)

3001 King Ranch Rd., Ukiah, CA 95482

Office: 707-485-1242

 

From: Noah Slater [mailto:nslater@tumbolia.org] 
Sent: Wednesday, October 03, 2012 1:05 PM
To: legal-discuss@apache.org; lrosen@rosenlaw.com
Subject: Re: License under which the Apache License 2.0 is released?

 

Thanks for your response, Lawrence.

 

I took the liberty to check with the Berne Convention, and it states:

 

"(4) It shall be a matter for legislation in the countries of the Union to
determine the protection to be granted to official texts of a legislative,
administrative and legal nature, and to official translations of such
texts."

 

So it seems the answer to our question is somewhere in state or federal law,
which I have no idea how to navigate.

cf. http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P85_10661

 

On Wed, Oct 3, 2012 at 2:52 AM, Lawrence Rosen <lrosen@rosenlaw.com> wrote:

Noah Slater asked:

> Not being a lawyer, my lay perspective would be that unless 

> the Apache license explicitly declares a license for itself, then 

> copyright applies in full affect, as it is a creative work.

> (That it is a functional creative works seems irrelevant  

> Software is also a functional creative work... Do legal 

> instruments carry some special status in this regard?)

 

 

The test of copyright IS NOT whether it is a creative work. I wrote a few
days ago: "I've always assumed that software licenses aren't actually
subject to copyright because their purpose is entirely functional -- namely
to influence the behavior of consumers of copyrighted goods." It appears you
don't agree with me on that point.

 

Yes, I suggest that some legal instruments have a special status. Would you
want someone to be able to copyright the words "I grant you an open source
license." so that nobody else can utter them without permission? As an
enforceable legal document with conditions and grants of rights, a software
license is functional whereas most software is both functional and
expressive. Even with software there are exceptions, though, with a court
recently ruling that certain header files are not copyrightable because they
too are entirely functional. When a court can't distinguish the functional
from the expressive, you can't copyright it. 

 

Perhaps if you wrote an open source software license as a 14-line sonnet in
iambic pentameter, there would be a great deal of expressive content in it.
But if you went to court to enforce that sonnet as a software license, the
court would deal exclusively with the functional aspects of your legal
statements and ignore the poetry (perhaps with a gratuitous compliment in a
footnote in the court's decision praising your creative brilliance). It is
in that sense that I consider a software license to be entirely functional. 

 

If, however, you want to soothe the consciences of those who might want to
repackage the Apache License with their own nuances, a FAQ that says "it is
OK to make derivative works of the Apache License" can serve that purpose.
(That sentence, too, is purely functional and I claim no copyright on it!)
As for me, I'd rather educate the public that copyright isn't as automatic
and encompassing as most people assume.

 

/Larry

 

Lawrence Rosen

Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com)

3001 King Ranch Rd., Ukiah, CA 95482

Office: 707-485-1242

 

From: Noah Slater [mailto:nslater@tumbolia.org] 
Sent: Tuesday, October 02, 2012 1:06 PM
To: legal-discuss@apache.org
Cc: Ralph Goers


Subject: Re: License under which the Apache License 2.0 is released?

 

For reference, the GPL is copyright the FSF, and is distributed under the
following terms:

 

"Everyone is permitted to copy and distribute verbatim copies of this
license document, but changing it is not allowed."

 

Not being a lawyer, my lay perspective would be that unless the Apache
license explicitly declares a license for itself, then copyright applies in
full affect, as it is a creative work. (That it is a functional creative
works seems irrelevant  Software is also a functional creative work... Do
legal instruments carry some special status in this regard?)

 

cf. http://www.gnu.org/licenses/gpl.html

On Mon, Oct 1, 2012 at 2:53 AM, Eric McDonald <the.eric.mcdonald@gmail.com>
wrote:

On 9/30/2012 7:35 PM, Ralph Goers wrote:

> If you change the name of the license it will no longer be the Apache
license but something else.  No one here is going to care that you copied
most of the Apache license to create your new license, so long as there is
no confusion between the two.  What more do you really need to know?

Really nothing more. I have you writing that no one on this list is
going to care if I copied most of AL 2.0 to create a new license. And, I
have Larry Rosen, someone who I know to be an IP lawyer, writing that he
assumes that software licenses are not actually subject to copyright. I
think these statements give me the main assurance which I sought.

Although I didn't explicitly ask, as I assumed someone would volunteer
the answer, I was wondering, as a matter of courtesy, if the ASF desired
acknowledgement for providing the basis for the derivative license. But,
it sounds like no one cares.

There was also some hope that someone might shoot down all of the
proposed features (enumerated in a previous message in this thread) of
my derivative license as being unnecessary or non-issues and that I
would be able to find the AL 2.0 to be the right tool in its existing
form. I suppose this sounds too much like asking for free legal advice
though.

Thanks to everyone who responded.

Cheers,
  Eric

P.S. To reiterate, the name of any derivative license which I create
will not have the word "Apache" in it or draw any connection to the ASF
or projects of the ASF.


> Ralph
>
>
> On Sep 30, 2012, at 11:23 AM, Eric McDonald wrote:
>
>> Thanks for your thoughts, Shane. Replies inline below.
>>
>> On 9/30/2012 9:53 AM, Shane Curcuru wrote:
>>> A few brief unofficial observations:
>>>
>>> - Posing a more specific question - in particular, with the reason
>>> behind the question (like: I want to create a derivative like X for Y
>>> project) is much more likely to get more... informed commentary back.
>>
>> Good advice. I do, in fact, want to publicly make available a project
>> which would ideally use a modified version of AL 2.0. However, I do not
>> want to make that project available until _after_ I have resolved what I
>> am going to do about licensing. I like most of the wording in AL 2.0,
>> but feel that it may be missing a few features which I would like to
>> have available. (I outlined those in my reply to Daniel Shahaf
yesterday.)
>>
>>> - Personally I've naively assumed that the AL(s) is available under the
>>> current AL 2.0 license, since that's what we tend to assume that all
>>> content from the ASF is available under (i.e. including websites),
>>> unless specifically mentioned otherwise.
>>
>> I've been tempted to assume the same. But, it would still be good to get
>> a definitive statement to that effect. I personally don't have an issue
>> with a little bit of recursion, but I don't know enough about law to
>> know if there is any problem in licensing a license with itself.
>> (Constitutions seem to empower themselves, but they're not licenses....)
>>
>>> - From the brand management perspective, I imagine that we would
>>> complain if someone modified the license, but left the "Apache" in there
>>> somewhere.  Apache is a trademark for our community developed software
>>> products, and clearly part of our brand awareness within software
>>> consumers derives from our specific license.
>>
>> Of course. There is certainly no intention on my part to co-opt any name
>> or mark of the ASF for my own use. (Supposing that I am allowed to
>> create a derivative license, I may need to attribute ASF in the license
>> text though.)
>>
>>> Didn't there used to be an example somewhere on the web that said "As
>>> long as you change the name, feel free to use or change"?  Or am I
>>> misremembering, or perhaps thinking of a long-ago private conversation?
>>
>> I would love to see that example. There was something in one of the FAQs
>> about doing that for software packages derived from software packages
>> maintained under ASF branding, but I didn't see anything pertaining
>> explicitly to ASF licenses.
>>
>>> These do raise good points about some of the legal details of the very
>>> few restrictions in the AL 2.0 - for someone who has the volunteer
>>> energy to pursue them.
>>>
>>> Thanks for the question and the commentary Eric.
>>>
>>> - Shane
>>
>> Eric
>>
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