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From "Lawrence Rosen" <lro...@rosenlaw.com>
Subject RE: New versions of CC licenses
Date Sat, 07 Dec 2013 21:50:44 GMT
Jeff Thompson wrote:

> I am saying, as between B and C, if they've agreed to exchange the code
under the GPL, as between those two, that's the license.  

 

I agree with that. So also if Red Hat takes software from the Linux
Foundation under the GPL and agrees with its customers to make that
available under a commercial license, then as between them the commercial
license is the deal. Perhaps Richard and other Linux vendor attorneys who
are on this list can tell us: Does anybody believe that this private deal
between Red Hat and its customers erases the effect of the GPL on that Linux
software? 

 

If IBM takes Apache Hadoop and makes it available to its customers under a
commercial license, then the mutual promises between IBM and its customers
define that transaction. I presume IBM will promise all sorts of warranties,
indemnity, and other protections that will encourage customers to pay for
free software. But that doesn't extinguish the Apache License and the
licensing requirements that ASF demands of all downstream licensees.

 

 

> Think if it this way, if A licensed B the code under AL2.0 as a private
deal and not one that A has ever made available to anyone else.  Does it
change your mind on whether C should be able to exercise AL2.0 rights to
that code after it receives them from B under the GPL?  I would say the
answer to that questions HAS TO BE yes, it does affect the answer.  C
doesn't have an offer from A under AL2.0, so C's only avenue of rights is
from B and B's grant is under the GPL, so that's what C is stuck with.



And I agree with that also. Indeed, I have sometimes encouraged the
/private/ licensing of code under the AL2 license, for example using AL2 as
a /contribution license/ for projects or companies that are satisfied with
obtaining AL2 rights privately. That's entirely up to the licensor and the
private licensee.  I recently even helped negotiate a private /amended/ AL2
license between my client and Google that changed certain patent terms to
satisfy the Android project. I make my living doing private deals. :-)

 

But that's not Apache!  We don't do private deals. If IBM or LibreOffice or
anyone else wants our software, it is made available publicly on our website
to all on equal terms. Enjoy it, but honor our license.

 

And either honor the special licenses of our contributors identified in our
NOTICE file, or remove those contributions from our code before you
distribute it.

 

Best,

 

/Larry

 

 

From: Jeffrey Thompson [mailto:jthom@us.ibm.com] 
Sent: Saturday, December 07, 2013 11:33 AM
To: legal-discuss@apache.org
Subject: Re: New versions of CC licenses

 

Richard Fontana <rfontana@redhat.com> wrote on 12/07/2013 12:54:22 AM:

> But okay, maybe "*needs* to read" is debatable. Depends on the
> circumstances. In Jeff's hypothetical above, suppose I'm C and I want
> to use the A code in some GPL-incompatibly-licensed product or
> project. Sure, I can say that the A code got magically transformed
> into GPL code and is tainted forever, forcing me either to find an
> upstream copy or variant (which won't always be easy or suitable) or
> to accept that the A code is stuck in a GPL state or to find or write
> some substitute. But if it's clear enough upon analysis that the A
> code was ALv2 and was not adapted in such a way that the adaptation
> would have to be licensed under GPL (a common scenario), then I ought
> to look at what ALv2 says and see what options that gives me.

I think that Richard's question might help eliminate one source of
disagreement.  I'm not saying that B's inclusion of A's code in a GPL
licensed product somehow extinguishes A's offer of that code under the
AL2.0.

I am saying, as between B and C, if they've agreed to exchange the code
under the GPL, as between those two, that's the license.  If C knows that
the code is also available under AL2.0 from A, unless there's some other
contractual obligation that C has that prevents it from doing so, C can
exercise AL2.0 rights to that code without having to go get an upstream copy
or do anything else.  But, just because those rights are available, it
doesn't mean that B is participating in the conveyance of those AL2.0
rights.  

As I described in an earlier note, copyright creates a right to prohibit
certain conduct, but A can't enforce a copyright prohibition on copying if
it has licensed the person its trying to enforce against. So, if C exercises
AL2.0 rights to that code it actually received under the GPL, but for which
it has confirmed that it benefits from A's public offer of AL2.0 rights, who
could sue it under the copyright act to stop it from exercising full AL2.0
rights?  B can't because its not the copyright owner.  A can't because it
offered (and C accepted) rights under AL2.0.  So, C is safe.  This has
NOTHING to do with B passing on AL2.0 rights to C.  

Think if it this way, if A licensed B the code under AL2.0 as a private deal
and not one that A has ever made available to anyone else.  Does it change
your mind on whether C should be able to exercise AL2.0 rights to that code
after it receives them from B under the GPL?  I would say the answer to that
questions HAS TO BE yes, it does affect the answer.  C doesn't have an offer
from A under AL2.0, so C's only avenue of rights is from B and B's grant is
under the GPL, so that's what C is stuck with.

Jeff
Counsel, IBM Software Group


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