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From Noah Slater <nsla...@tumbolia.org>
Subject Re: License under which the Apache License 2.0 is released?
Date Wed, 03 Oct 2012 20:04:36 GMT
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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> >>
> >
> >
> > ---------------------------------------------------------------------
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> >
>
>
> ---------------------------------------------------------------------
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>
>
>
> ****
>
> ** **
>
> --
> NS****
>



-- 
NS

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