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From "Marvin Humphrey (JIRA)" <j...@apache.org>
Subject [jira] [Commented] (LEGAL-114) License Header - Short Form?
Date Wed, 12 Jun 2013 01:10:20 GMT

    [ https://issues.apache.org/jira/browse/LEGAL-114?page=com.atlassian.jira.plugin.system.issuetabpanels:comment-tabpanel&focusedCommentId=13680868#comment-13680868
] 

Marvin Humphrey commented on LEGAL-114:
---------------------------------------

Larry,

I have always thought of you as an ace lawyer.  I will acknowledge a certain
amount of impatience that the ASF has been unable to make progress on
short-form headers up till now because the issue of copyright notices keeps
being interposed; to the extent that such impatience has seeped through into
my communiques, I regret it.  I am pleased that we are now moving forward.

As a contributor to the ASF, my priority is the stability of the projects I
spend my time on.  While I am not a spokesperson for my employer, by my
assessment their interests are aligned with mine -- they sponsor my work, and
as a consumer of the products that I contribute to, it would be bad for them
if their investment were to be harmed.  And since most contributors and users
have similar priorities, the ASF expends a lot of energy on source code
provenance tracking through our version control systems and so on.

In contrast, preserving the right to sue for statutory damages and attorney's
fees over our contributions seems to offer us little.  In fact, one of the
selling points of Apache is that our liberal licensing traditions reduce the
legal costs and risks for business who integrate our software.  It's not in
our interest for litigation to increase around the periphery of Apache
products -- better to settle problems quietly an amicably, as the liberal
license facilitates.

In any case, I have struggled to find references which reinforce my
interpretation of the statement that a copyright notice is *required* in order
to obtain statutory damages and attorney's fees.  I haven't found language I
would interpret that way in chapters 4 or 5 of the statute, nor have I found
any similar language in various "pop law" books and articles out there
explaining what a valid copyright notice offers.  Instead, what everybody
mentions is that a valid notice gives you a slam dunk against the "innocent
infringement" defense, per 401(d):

    http://www.copyright.gov/title17/92chap4.html#401

    (d) Evidentiary Weight of Notice. — If a notice of copyright in the form
    and position specified by this section appears on the published copy or
    copies to which a defendant in a copyright infringement suit had access,
    then no weight shall be given to such a defendant's interposition of a
    defense based on innocent infringement in mitigation of actual or
    statutory damages, except as provided in the last sentence of section
    504(c)(2).

Should I have interpreted "required" to mean that it may be impractical to go
after statutory damages if you don't have a valid notice in your pocket to
defeat an innocent infringement defense?  (That would be consistent with the
emphasis your proposed board resolution places on "innocent infringement".)

I also wonder, if we provide a collective copyright per 404(a) as a stand-in
for our contributors' copyright notices, whether individual committers or the
ASF itself might incur liability if someone fails to update the notice or
otherwise damage it, ultimately impairing the ability of another contributor
to sue for infringement.  If we tell them to count on us, what happens when we
don't come through?

                
> License Header - Short Form?
> ----------------------------
>
>                 Key: LEGAL-114
>                 URL: https://issues.apache.org/jira/browse/LEGAL-114
>             Project: Legal Discuss
>          Issue Type: Question
>            Reporter: Roger Meier
>
> Hi all
> Today the license headers within files does need ~ 15 lines within a file.
> This needs lot of space at the top of a file, probably too much if you have a small README
file. 
> e.g. http://svn.apache.org/viewvc/thrift/trunk/tutorial/README?view=markup
> Is it possible to use a smaller header reflecting the license terms within a source or
README file?
> Can we use something like that one or a shorter one?
> {noformat}
> /*
>  * Copyright (c) The Apache Software Foundation
>  * Licensed to the ASF under one or more contributor license agreements
>  * (see NOTICE file distributed with this work). ASF licenses this file to you
>  * under the following license http://www.apache.org/licenses/LICENSE-2.0
>  * Software distributed is distributed on an "AS IS" BASIS, WITHOUT WARRANTIES
>  * OR CONDITIONS OF ANY KIND, either express or implied.
>  */
> {noformat}
> Should we mention also the License identifier (Apache-2.0) used within spdx standard?
> see http://spdx.org/licenses/
> Thanks,
> Roger

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