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From "Lawrence Rosen" <lro...@rosenlaw.com>
Subject RE: New versions of CC licenses
Date Fri, 06 Dec 2013 20:55:46 GMT


The Apache License granted by ASF to its software is to everyone, not just
IBM. The CC-BY license is to everyone, not just IBM. You seem to be focused
on sublicensing but I don't understand the relevance to our discussion. Your
commercial sublicenses are your own concern, and I'm certain you add lots of
commercial terms to those sublicenses that we at Apache don't care about.


IBM can satisfy the Apache License easily by honoring the redistribution
conditions in AL section 4. IBM can satisfy the CC-BY license in almost
exactly the same way. Nothing in either license allows you to hide from your
customers the fact that you are distributing the Apache and CC-BY works to
them. [1] The only difference is that the CC-BY licensor can require you to
/remove/ her attribution notice. You can easily satisfy these simple
obligations on behalf of your commercial customers, or omit the CC-BY
components altogether.


Regarding the TPM requirement of CC-BY: As I described, you are not hiding
the Apache and CC-BY software presence in your commercial products. Even if
you use TPM in your products to protect the versions that you distribute,
your website can easily refer people to Apache for the original source! 




[1] Apache License section 4(a): "You must give any other recipients of the
Work or Derivative Works a copy of this License; and...."


Lawrence Rosen

Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com
<http://www.rosenlaw.com/> )

3001 King Ranch Rd., Ukiah, CA 95482

Office: 707-485-1242

Linkedin profile: http://linkd.in/XXpHyu 


From: Jeffrey Thompson [mailto:jthom@us.ibm.com] 
Sent: Friday, December 06, 2013 11:31 AM
To: legal-discuss@apache.org
Subject: Re: New versions of CC licenses


Jim Jagielski <jim@jaguNET.com> wrote on 12/06/2013 06:33:05 AM:
> On Dec 5, 2013, at 4:30 PM, Richard Fontana <rfontana@redhat.com> wrote:
> > 
> > You keep asserting this but I do not think you are correct. The
> > general rule in the US, though it is a state law issue, is that you
> > need explicit permission to pass on a proper subset of rights received
> > as to the original material. 

. . .
> +1

The fact that Richard doesn't think I'm correct, notwithstanding, his
statement of the law is incorrect.  You do not need explicit permission to
pass on a subset of rights.  The reason why derives from the basic structure
of copyright itself.  Unfortunately, this will take a couple of minutes.  I
hope no one is too bored.

Copyright is a government granted monopoly on the right to perform certain
actions with respect to creative works.  US Copyright law provides six basic
exclusive rights:  reproduction, modification, distribution, public
performance, public display, and digital audio transmission (ignoring moral
rights which are somewhat supported in US Law and the quasi-right of access
created by the DMCA).

If you're not performing one of those actions or even if you are, but you
fall within one of the statutory exceptions (such as fair use, library
rights, etc.), you do not need permission from the copyright owner to do
what you are doing.  So, reading a book?  Great.  No copyright right needed.
"Reading" isn't a granted exclusive right.  

The structure of the legal regime is that you're allowed to do anything you
want, unless you infringe one of the exclusive rights granted by Title 17 of
the US Code.

If you want to take advantage of one of the exclusive rights, you need
permission.  If you're granted permission, the scope of that permission
controls what you are allowed or not allowed to do.  If I have permission to
make 1 copy of a book, that's what I get to do -- make 1 copy of the book.
If the permission doesn't say anything about how I have to make the copy,
when I can make the copy, or any other details, the restrictions do not
exist.  Only that which is specified in the permission grant (i.e., license)
applies.  Of course, ambiguities need to be resolved when they are present,
but generally, if there are no restrictions, none are implied.

So, if I enter into a license agreement with a publisher of a book to be
able to print and distribute up to 50 physical copies of that work (invoking
2 exclusive rights, the right of reproduction and the right of
distribution), I'm good as long as I say within the 4 corners of that
license agreement.  There might be region limitations in the distribution
right grant.  If there are, I can only offer those copies for sale within
that region.  If there are no limitations, I can offer those copies anywhere
I want.  

The end user of a physical book needs no copyright grant to use the book as
intended.  Therefore, there is no need for the distributor to grant me the
right to pass on any of my license rights and no right to do that would be
implied in the absence of specific language.  On the other hand, if I'm
distributing e-books and the end user is making a copy of the work by
downloading it from my site, then I would need to be able to authorize the
end user to make that copy (otherwise the end user would be an infringer).
Normally, the license agreement would explicitly provide me with that right,
but even if the agreement were silent on that point, the context makes it
clear that copies are being made by the user and a court, if presented with
the question, would very likely infer the right to pass on the permission to
make the copy.  However, in no event would anyone even think of imposing on
me an obligation to provide all of my rights to make and distribute copies
to the end user.  

The basic structure of copyright is that only specific rights are exclusive
to the author and that only things that infringe one of those rights are
prohibited.  Anything not prohibited is permitted.  That's why, unless the
right to distribute says that you must pass on all rights, a licensee is
under no such obligation.  

Copyright has been around for over 300 years.  While I can understand that
someone who is looking only at OSS licenses might conclude that it would
make sense to have a rule that says you have to pass on all rights, unless
given explicit permission otherwise.  However, it would make no sense for
any other situation -- not books, not music, not maps, not even commercial
software.  Software licenses don't have special rules.  Software is treated
as a literary work under the US Copyright law and inherits all of the rules
and practices that have developed since the first US copyright act in 1790.
And remember, software wasn't even explicitly a subject of copyright in the
US until the 1980 CONTU amendment to the 1976 Copyright Act.  

The purpose of a rule of construction is to give effect to the most likely
intent of the parties absent specific guidance in the license.  Richard is
proposing the existence of a rule of construction that says, in the absence
of a statement otherwise, a license must pass on all rights it obtained from
the licensor when it distributes a work.  

Honestly, what is the chance that the development of US Copyright Law during
the almost 200 years between 1790 and 1980 would include a rule of
construction that created a default obligation on a licensee that made
absolutely no sense for any copyrightable work that existed prior to 1980?
It's not like they knew OSS was going to show up at some point in the future
and make the rule of construction useful.

So, if Richard wants to propose that that rule of construction exists, he
needs to prove it.  Neither he, nor Larry, has provide a cite to a case or
statute that even implies such a rule.  I'm assuming that, for Richard, he
hasn't looked at the history of the Copyright Law and its application in
industries outside of OSS, but Larry should know better.  I'm starting to
strongly suspect that Larry is allowing his desire for a particular legal
rule to overshadow the actual statute and caselaw.  

Counsel, IBM Software Group

(apologies for the length of the post)

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