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From "Marvin Humphrey (JIRA)" <j...@apache.org>
Subject [jira] [Commented] (LEGAL-114) License Header - Short Form?
Date Tue, 11 Jun 2013 03:02:20 GMT

    [ https://issues.apache.org/jira/browse/LEGAL-114?page=com.atlassian.jira.plugin.system.issuetabpanels:comment-tabpanel&focusedCommentId=13680166#comment-13680166
] 

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

Let's consider two excerpts from a Jennifer Machovec email quoted in Larry's
March 2005 omnibus email:

> Second, there was a *very* strong feeling throughout the ASF
> membership that they wanted the Apache Software Foundation identity to
> remain a constant rather than focusing on the individual contributors.
> The members and the board were adamant that they did not want to
> encourage contributors to include their own copyright notices in the
> source; they wanted the contributors to delete any such notices and
> replace them with the ASF copyright.

> As Jim and I have both noted, this is admittedly not as solid as
> expressly identifying the ASF licensors in the copyright notice.
> However, I believe that the "licensors" designation coupled with the
> COPYRIGHT file is sufficient to put the users on notice and defeat an
> innocent infringement defense.

The second quote demonstrates that the board was well-informed about "innocent
infringement" in 2005 -- yet *still* passed the resolution removing copyright
notices a little over a year later, in May 2006.

Such a decision wouldn't make sense if it seriously damaged the ASF's ability
to pursue its mission.  However, if the legal value of a copyright notice is
only "slight" (though "not zero"), a willingness to forfeit such a "slight"
benefit is at least within the bounds of rational behavior, if not yet
explained.

The 2006 decision also wouldn't make sense if maximizing legal leverage --
however "slight" -- in anticipation of litigation were a paramount concern.
Maybe this aspect is what a lawyer would find baffling (or at least
frustrating): why not take such apparently simple precautions in order to
ensure victory and extract maximum damages?

Perhaps we have failed to communicate the nature and severity of the problems
that copyright notices cause for us, as alluded to in the text of resolution
6c: "WHEREAS, the Foundation has observed that per-file attribution of
authorship does not promote collaborative development,".  At least Jennifer
Machovec seems to have grasped the depth of our membership's conviction,
though.

On the flip side, I still do not understand why the "slight" advantage
conferred by a copyright notice is so important.  What sort of dispute are we
preparing for?

*   The incorporation of Apache products into proprietary software is A-OK, so
    we don't have concerns along the lines of the FSF, which must police the GPL.
*   Our contributors are already licensing their work under an extremely
    liberal license, so how much do they stand to gain from suing someone for
    infringement -- and does omitting copyright notices discourage anyone from
    contributing?
*   We don't want other open source projects to abuse our products
    (e.g. by copying the code but slapping on their own license), but failing
    to rectify such a situation would be fatal to an open-source infringer's
    reputation.
*   I suppose we need to ensure that our patent termination clause has teeth,
    but is "innocent infringement" really going to come into play with
    somebody sophisticated enough to hold patents?

Virtually every resource I read on the subject suggests that claiming your
infringement was "innocent" is a weak defense.  That's consistent with the
assessment of copyright notices having only "slight" value -- and with common
sense to boot.

Imagine that the ASF is involved in some infringement dispute which cannot be
resolved amicably.  Is the "slight" value of a copyright notice going to tip
the scales on whether an injunction gets issued?  Is an infringer going to get
away with claiming that their infringement was "innocent" despite our license
header?

For that matter, would an infringer get away with claiming their infringment
was "innocent" because a source file included the minimalist header suggested
by Henri up-thread rather than our current long-form license header?

    /**
     * Licensed under the Apache-2.0 license.
     */ 

                
> 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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