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From Tao Effect <cont...@taoeffect.com>
Subject Re: Serious problem with the Apache Contributor's License Agreement (CLA) v2.0
Date Sun, 15 Sep 2013 12:55:59 GMT
> And thanks for your emails.

Thanks Chris! And thanks for your reply as well!

BTW, good morning list! ^_^

Disclaimer: I haven't had my coffee yet.

> Probably in the legal definition either of a collective work (something
> that incorporates your
> licensed work or contribution, but in a "black box" way, by not changing
> it); or a derivative
> work (something that incorporates your licensed work by taking it and
> directly modifying it
> in some fashion). That would be my read on it.


Oh boy. OK. I'm just going to put off addressing this for now because I don't think we've
quite reached the point where it's been proven that the FAQ matters at all. If that is somehow
proven (and I doubt that it will be), then I'll try to wrap my head around the concepts involved
here and see if the issue remains. There's still also the problem that both our "reads"/"interpretations"
of the text are just that, and the text itself is too vague to limit itself to any one specific
interpretation.

> IANAL.

K, well then are you an agent of the ASF who is authorized to make authoritative legal interpretations
of the intent/meaning of Apache's legal documents?

> It's relevant in that the ICLA is a part of the ASF, as is the FAQ that is
> part of the
> legal documentation of the ASF.
> 
> Further, http://www.apache.org/licenses/ is referenced in the ICLA, and
> thus
> so is the FAQ page [linked from the prior page] and thus
> so is the http://www.apache.org/foundation/license-faq.html page [linked
> from the prior page]


I see multiple problems here:

- By what authority is it the case that the fact that one link was included in the AL* (with
absolutely no context for why it was included) is an indication that the agreement being signed
is not the entire agreement, and that additional parts of the agreement can be found through
any number of nested links within that link that was included?

- Through the "licenses" link I could probably reach every page on the internet. Where is
it specified what reachable links are valid and what reachable links are invalid interpretations
of the license?

- The FAQ page has been updated several times in the past, and will likely continue to be
modified in the future. Which version of the FAQ page is being agreed to by the signer of
the agreement? Is this version somehow preserved somewhere in a method that can verify its
authenticity?

This discussion also sidesteps the very serious issue of the fact that the AL's have been
copied by various organizations for their own purposes. These copies usually contain this
text verbatim, but with all the references to the ASF removed, including the (rather useless,
IMO) link to the ASF license FAQ page.

All of these copies can no longer be said to be matched to the ASF's internet/meaning, whatever
it might be. A single bad apple is all it takes to ruin it for everyone, and really ruin it
for the person who just lost all of the patent rights. If that were to happen, I can see it
potentially setting off a panicked reaction throughout the entire community.

The fact that Numenta, Inc. was able to see this problem with the AL and went public about
it sets a legal precedent that legitimizes the evil interpretation of the AL, which can then
be used in a court of law to uphold said evil interpretation.

My blog post hit the front page of Hacker News last night. Here's a link to the comments:
https://news.ycombinator.com/item?id=6387660

The comments include some interesting perspectives:


> jwecker 11 hours ago | link | parent | flag
> 
> I don't believe a single stated "No" in the FAQ will be very meaningful, except to point
out that even the creators of the license failed to notice the loophole.
> Edit: Also, the fact that the interpretation can exist and is in written form is what
suddenly makes it an issue, at the very least for anyone going forward. (IANAL)
> 

And this one:

> 	
> SEMW 11 hours ago | link
> 
> > many open source licenses have exactly such terms in order to fight software patents
> This misses the point. If you want an atypically wide patent grant (covering not just
patents infringed by your contributed code, but also to future contributions by other people
which infringe a patent of yours), then that should be done openly and explicitly. Not by
the backdoor with a clause that doesn't appear to do that but could be interpreted as doing
do if you took it to its logical conclusion.
> 
> (Though it's pretty clear that doing do wasn't actually their intention, given their
FAQ denies that interpretation - see DannyBee's post)
> 



   —

I'm looking for a straight answer from an authorized agent of the ASF to this question:

If the ASF does not intend to allow for the evil interpretation of their ALs as described
in these emails, then will the ASF make this clear within the text of the ALs themselves?
If not, what is the reason for the refusal to add the clarification?

Thanks,
Greg Slepak

* AL = All of the Apache Licenses (CLA and otherwise) that include the questionable patent
clause.

P.S. Please forgive all typos you come across. I still haven't had my coffee or breakfast
and am getting cranky. :-p

--
Please do not email me anything that you are not comfortable also sharing with the NSA.

On Sep 14, 2013, at 10:42 PM, Chris Mattmann <mattmann@apache.org> wrote:

> Hi Greg,
> 
> 
> -----Original Message-----
> From: Tao Effect <contact@taoeffect.com>
> Reply-To: <legal-discuss@apache.org>
> Date: Saturday, September 14, 2013 7:31 PM
> To: <legal-discuss@apache.org>
> Subject: Re: Serious problem with the Apache Contributor's License
> Agreement (CLA) v2.0
> 
>> Hi Marvin,
>> 
>> Thanks for your reply!
> 
> And thanks for your emails.
> 
>> [..snip..]
>> 
>> 
>> 
>> Note, however, that licensable patent claims include those that you
>> acquire in the
>> future, as long as they read on your original contribution as made at the
>> original time.
>> 
>> 
>> 
>> This sentence is rather unclear to me. It sounds like what it's intending
>> to say is that you grant a license to any future patent claims you make
>> should they be based on "your original contribution"? If so, how,
>> exactly, must they be "based on" it?
> 
> Probably in the legal definition either of a collective work (something
> that incorporates your
> licensed work or contribution, but in a "black box" way, by not changing
> it); or a derivative
> work (something that incorporates your licensed work by taking it and
> directly modifying it
> in some fashion). That would be my read on it. IANAL.
> 
>> 
>> Also, this FAQ is not in any way referenced in the agreement that is
>> actually signed, so I don't see how it is relevant to the discussion.
> 
> It's relevant in that the ICLA is a part of the ASF, as is the FAQ that is
> part of the
> legal documentation of the ASF.
> 
> Further, http://www.apache.org/licenses/ is referenced in the ICLA, and
> thus
> so is the FAQ page [linked from the prior page] and thus
> so is the http://www.apache.org/foundation/license-faq.html page [linked
> from the prior page]
> 
> Cheers,
> Chris
> 
> 
> 
>> 
>> Kind regards,
>> Greg Slepak
>> 
>> --
>> 
>> Please do not email me anything that you are not comfortable also sharing
>> with the NSA.
>> 
>> 
>> On Sep 14, 2013, at 9:56 PM, Marvin Humphrey <marvin@rectangular.com>
>> wrote:
>> 
>> 
>> On Sat, Sep 14, 2013 at 4:38 PM, Tao Effect <contact@taoeffect.com> wrote:
>> 
>> I recently finished a rather long exchange with Numenta, Inc. on a matter
>> related to a paragraph taken from the Apache CLA v2.0.
>> 
>> 
>> 
>> For what it's worth, similar language exists in the Apache License 2.0.
>> 
>> [..] it appears to allow an interpretation that states that I¹m
>> potentially
>> giving away royalty-free licenses to all the software patent claims I ever
>> make should I make a single contribution to NuPIC, whatever it may be.
>> 
>> 
>> 
>> If I understand correctly, your concern is that once you've made a single
>> contribution under an iCLA (or the ALv2), a malevolent party might
>> contribute
>> something to the same "Work" at some point in the future which infringes
>> against an unrelated patent of yours, unfairly wresting a patent license
>> from
>> you.
>> 
>> For example:
>> 
>> *   An employee of Apple contributes some documentation to Dr. X's
>> open-source
>>   cryptography library.
>> *   Dr. X subsequently adds a GUI to his cryptography library which
>> utilizes
>>   "slide to unlock".
>> *   Dr. X has obtained a patent license from Apple for "slide to unlock".
>> 
>> Does that illustrate your concern accurately?  If so, I believe that this
>> FAQ
>> entry is relevant:
>> 
>>   http://www.apache.org/foundation/license-faq.html#PatentScope
>> 
>>   [...]
>> 
>>   The only patent claims that are licensed to the ASF are those you own
>> or
>>   have the right to license that read on your contribution or on the
>>   combination of your contribution with the specific Apache product to
>> which
>>   you contributed as it existed at the time of your contribution. No
>>   additional patent claims become licensed as a result of subsequent
>>   combinations of your contribution with any other software. Note,
>> however,
>>   that licensable patent claims include those that you acquire in the
>>   future, as long as they read on your original contribution as made at
>> the
>>   original time. [...]
>> 
>> Numenta discussed the matter with their legal team and decided to add a
>> few
>> words to eliminate the dangerous interpretation. They announced this via a
>> blog post:
>> 
>> http://numenta.org/blog/2013/09/03/numenta-contributor-license-v1-1.html
>> 
>> 
>> 
>> IANAL, but my understanding is that that provision is there to guard
>> against
>> submarine patents.  I'd be curious whether the change described in that
>> blog
>> post weakens protections against contributors sneaking in technology for
>> which
>> patents subsequently "surface" and for which royalties are demanded from
>> end
>> users.
>> 
>> Marvin Humphrey
>> 
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>> 
>> 
> 
> 
> 
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