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From "Benson Margulies (JIRA)" <j...@apache.org>
Subject [jira] [Commented] (LEGAL-168) Apache Third-Party IP Policies
Date Wed, 12 Jun 2013 11:58:20 GMT

    [ https://issues.apache.org/jira/browse/LEGAL-168?page=com.atlassian.jira.plugin.system.issuetabpanels:comment-tabpanel&focusedCommentId=13681146#comment-13681146
] 

Benson Margulies commented on LEGAL-168:
----------------------------------------

Anyone who comes to read this JIRA should have a clear picture of what ASF projects do.

The statement that the Foundation "... is the publisher of software works collected and compiled
in Apache projects" is not accurate, in general.

The work product of the Apache Software Foundation are source releases of software products.
These products are produced by the Foundation's volunteers. While individual volunteers are
the authors of the many pieces of the source code, the overall work -- the release -- is nothing
remotely like a 'compilation' in the traditional intellectual property sense of the term.
The individual source files do not stand on their own; they are not like short stories in
an anthology or words in a dictionary.

The distribution channel for the work products of the Foundation is not a web site of individual
web pages. It is a download facility by which users download entire releases. The release
packages are archives that include all the individual source files, together with legal notices.
The legal notices assert the Foundation's copyright in the overall work, grant the Apache
License to the public, and give required notice when the work includes material that did not
originate at the Foundation.

 The Foundation grants internet access to individual files to facilitate development, and
I suppose this could be legally construed as publication, but it is not the primary distribution
channel.

While each source file is the work initial work of one individual, many rapidly become palimpsests
reflecting the work of many authors. 

In terms of a long-standing argument between Larry and the Foundation's other legal advisers,
the Foundation's policy is to avoid copyright notices in the individual source files. Instead,
the Foundation depends on the overall release notice to give notice of copyright. Since many
individuals could assert copyright in the individual source files, these notices would rapidly
become unwieldy. Further, the Foundation has policy reasons to avoid a thicket of individual
authorship assertions in each file. As part of our mission as a public charity, we want to
encourage as many people as possible to contribute code. Authorship assertions tend to discourage
modifications by others. So we do not permit them, either in the form of copyright notices
or anything else.

The Foundation thus states a policy, "If you want to contribute code here, you have to be
willing to forgo your personal copyright notice." Anyone who finds this disturbing is welcome
to take their efforts elsewhere.

While Larry has often stated that it would be a better plan to put a Foundation copyright
notice into each file, I have yet to see an explanation from him of the following: if a single
individual writes a single source file, including the Apache License notice at the top, how
could the Foundation claim copyright in that single file? Larry's most recent rather flippant
response was to claim that 'The Foundation modifies the file by adding the Apache License.'
First of all, this is simply not true. The 'Foundation' does not add the notice, the individual
author is required to add it. Second, I find it hard to credit the idea that adding a license
notice is sufficiently creative to engender copyright.



                
> Apache Third-Party IP Policies
> ------------------------------
>
>                 Key: LEGAL-168
>                 URL: https://issues.apache.org/jira/browse/LEGAL-168
>             Project: Legal Discuss
>          Issue Type: Question
>            Reporter: Lawrence Rosen
>
> I'd like to help the Apache community to discuss Apache Software Foundation policies
regarding contributions of copyrighted works from third parties in order for us to publish
them at the Apache website. 
> This discussion is now scattered among many JIRA issues and email archives. For example,
a recent thread here reconstructed my own correspondence about this to the legal-discuss@
list in 2005 -- and then misinterpreted what I'd said then. So I want this new JIRA issue
where I am free to say what I want when I want to say it, without obstruction from issue-jumpers
and list-jumpers around here who try to discourage coherent arguments.
> I'll probably be wrong in some of what I say. I will sign my own comments here and I
will read (and perhaps respond to) any comments from anyone who signs his or her name here
also. I will particularly welcome comments from the attorneys on this list, at least those
who aren't too cowardly or too busy to speak up. If you don't enjoy legal controversy, don't
read this JIRA thread.
> Best regards,
> /Larry
> P.S. More to come....

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