Return-Path: X-Original-To: apmail-legal-discuss-archive@www.apache.org Delivered-To: apmail-legal-discuss-archive@www.apache.org Received: from mail.apache.org (hermes.apache.org [140.211.11.3]) by minotaur.apache.org (Postfix) with SMTP id EA47EDB03 for ; Wed, 3 Oct 2012 22:45:34 +0000 (UTC) Received: (qmail 75363 invoked by uid 500); 3 Oct 2012 22:45:34 -0000 Delivered-To: apmail-legal-discuss-archive@apache.org Received: (qmail 75097 invoked by uid 500); 3 Oct 2012 22:45:34 -0000 Mailing-List: contact legal-discuss-help@apache.org; run by ezmlm Precedence: bulk List-Help: List-Unsubscribe: List-Post: Reply-To: legal-discuss@apache.org List-Id: Delivered-To: mailing list legal-discuss@apache.org Received: (qmail 75087 invoked by uid 99); 3 Oct 2012 22:45:34 -0000 Received: from athena.apache.org (HELO athena.apache.org) (140.211.11.136) by apache.org (qpsmtpd/0.29) with ESMTP; Wed, 03 Oct 2012 22:45:34 +0000 X-ASF-Spam-Status: No, hits=2.2 required=5.0 tests=HTML_MESSAGE,RCVD_IN_DNSWL_NONE,SPF_PASS X-Spam-Check-By: apache.org Received-SPF: pass (athena.apache.org: domain of lrosen@rosenlaw.com designates 67.222.55.9 as permitted sender) Received: from [67.222.55.9] (HELO oproxy7-pub.bluehost.com) (67.222.55.9) by apache.org (qpsmtpd/0.29) with SMTP; Wed, 03 Oct 2012 22:45:28 +0000 Received: (qmail 7801 invoked by uid 0); 3 Oct 2012 22:38:28 -0000 Received: from unknown (HELO box597.bluehost.com) (66.147.242.197) by oproxy7.bluehost.com with SMTP; 3 Oct 2012 22:38:28 -0000 DKIM-Signature: v=1; a=rsa-sha256; q=dns/txt; c=relaxed/relaxed; d=rosenlaw.com; s=default; h=Content-Type:MIME-Version:Message-ID:Date:Subject:In-Reply-To:References:Cc:To:From:Reply-To; bh=l9Tn6/MwQq/Vc5yUQkNYzTkH+xgDwJOATlygx9Byp4Y=; b=f17iOKf9MOww69M53CYfHD2s3cARP9KUdLhACC6R9avWHh0VSF8UIDZZPbJxSBx3aT6Ncm22zuc1CNgewp1S75t4LkUNPQ1glvAjVJJg+2WtRQMiY8p65e6mLFUVm+bY; Received: from [70.36.224.178] (port=51778 helo=Lawrencei) by box597.bluehost.com with esmtpsa (TLSv1:AES128-SHA:128) (Exim 4.76) (envelope-from ) id 1TJXaF-0006BO-Mx; Wed, 03 Oct 2012 16:38:28 -0600 Reply-To: From: "Lawrence Rosen" To: "'Noah Slater'" , Cc: References: <50672C99.1020702@gmail.com> <50684ECF.4020805@shanecurcuru.org> <50688E2B.8060902@gmail.com> <5E95F891-2B44-4AC6-9037-840C03B6648F@dslextreme.com> <5068F794.3090004@gmail.com> <012201cda109$bbd57ac0$33807040$@rosenlaw.com> In-Reply-To: Subject: RE: License under which the Apache License 2.0 is released? Date: Wed, 3 Oct 2012 15:38:28 -0700 Organization: Rosenlaw & Einschlag Message-ID: <02b901cda1b7$cf0d87f0$6d2897d0$@rosenlaw.com> MIME-Version: 1.0 Content-Type: multipart/alternative; boundary="----=_NextPart_000_02BA_01CDA17D.22B36AE0" X-Mailer: Microsoft Outlook 14.0 Thread-Index: AQGTptkhYPEWUWTBbd2L8PlJhG3eegIb3QjKAhDyjv0AzA0ELgJ7qvrvAsQW2AkBL04O9wCpmee9l7uTXpA= Content-Language: en-us X-Identified-User: {1397:box597.bluehost.com:rosenla1:rosenlaw.com} {sentby:smtp auth 70.36.224.178 authed with lrosen@rosenlaw.com} X-Virus-Checked: Checked by ClamAV on apache.org ------=_NextPart_000_02BA_01CDA17D.22B36AE0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit 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 ( 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 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 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 >> >> --------------------------------------------------------------------- >> To unsubscribe, e-mail: legal-discuss-unsubscribe@apache.org >> For additional commands, e-mail: legal-discuss-help@apache.org >> > > > --------------------------------------------------------------------- > To unsubscribe, e-mail: legal-discuss-unsubscribe@apache.org > For additional commands, e-mail: legal-discuss-help@apache.org > --------------------------------------------------------------------- To unsubscribe, e-mail: legal-discuss-unsubscribe@apache.org For additional commands, e-mail: legal-discuss-help@apache.org -- NS -- NS ------=_NextPart_000_02BA_01CDA17D.22B36AE0 Content-Type: text/html; charset="us-ascii" Content-Transfer-Encoding: quoted-printable

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 (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_106= 61

 

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.

 <= /o:p>

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.

 <= /o:p>

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.

 <= /o:p>

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<= /o:p>

 

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?

 <= /o:p>

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

 <= /o:p>

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

 <= /o:p>

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?)

 <= /o:p>

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
>>
>> = ---------------------------------------------------------------------
= >> To unsubscribe, e-mail: legal-discuss-unsubscribe@apache.org
>> = For additional commands, e-mail: legal-discuss-help@apache.org
>>
>>
> = ---------------------------------------------------------------------
= > To unsubscribe, e-mail: legal-discuss-unsubscribe@apache.org
> For = additional commands, e-mail: legal-discuss-help@apache.org
>


--= -------------------------------------------------------------------
To= unsubscribe, e-mail: legal-discuss-unsubscribe@apache.org
For = additional commands, e-mail: legal-discuss-help@apache.org

<= /div>



 <= /o:p>

-- =
NS



 

-- =
NS

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