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From "Lawrence Rosen" <lro...@rosenlaw.com>
Subject RE: New versions of CC licenses
Date Mon, 09 Dec 2013 22:52:51 GMT
I apologize to Jeffrey and IBM. I have reviewed Jeff's earlier notes here
and I misunderstood his earlier emails. He actually said this on 12/4:


The gist of Apache's policy has been that as long as you're passing on the
notices and otherwise complying with the license, its not a problem if the
user's commercial terms with their customers are different from the Apache
license (for example, most commercial licenses prohibit modification, or at
least void warranties and support, etc if the code is modified).


This seems to indicate that IBM in fact aware that it must pass along the
notices and comply with Apache License Section 4. I misspoke. I'm sorry.


I believe we still differ about what this means for our customers. I have
asserted that this indicates that the Apache License 2.0 continues to apply
to the original Apache software incorporated into IBM's products; that
license is not extinguished by the new commercial license under which IBM
distributes its products, any more than the GPL is extinguished on Linux by
Red Hat or Oracle commercial licenses. In a practical and legal sense, IBM
can add things like warranties, services, support, indemnity, etc., but it
can't take away from its customers any of the original rights to the work
that Apache gave to the entire world.


I'm carefully agreeing with Jeff's assertion that IBM can offer Apache
software to IBM's customers under a limited set of Apache's terms and
conditions. As long as users receive the original license and NOTICES, they
know what they are getting and where they can get the original work for
free, and Apache doesn't care about the commercial relationship at all.


But where this matters is when Apache elects to include third party software
(or other copyrighted materials) under one of many other FOSS licenses that
are available to us, into our software. Now THOSE license terms also apply
to portions of the Apache work, and so we have to understand the effects of
THOSE licenses also.


We have argued here for months about CC-BY, for example. Opinions about this
license differ widely. Unfortunately, this list has also been peppered with
untrue statements about that license, including false assertions that it has
been rejected by other FOSS organizations. Quite frankly, Jim Jagielski just
made the most intelligent comment in this thread in days, namely to discuss
this directly with the Creative Commons folks:


To me this seems the logical next step: we can continue to go around and
around and debate the letter, but all that is, imo at least, secondary to
the what their intent was and is. I consider this almost a parallel to how
we understand and honor the 4-clause BSD...


That is also what FSF is doing, according to Eben Moglen. I know that W3C is
still in conversation with Creative Commons about a license for their
standards. That is what Apache and other companies participating on this
list should do. 


But when we approach Creative Commons, we should understand our own
intentions. For example, is it our intention to limit FOSS contributions to
our own projects if one or more of our commercial friends and partners
doesn't like the third party license? Or if it will mean that they will have
to renegotiate their commercial licenses? Or if it will affect their DRM
policies? Or should we set our own criteria for acceptable contributions and
acceptable licenses?


What we should NOT do, please, is to keep treating third party licenses in
an ad hoc fashion as we've been doing for the past few years. This isn't
just about CC-BY. There are lots of copyrighted works in the wild that might
be excellent contributions for Apache projects. It makes no sense to analyze
each of them in our current haphazard way, divining the meaning of Apache's
ambiguous Third Party License Policy anew each time another license is


But with Jim's suggestion in the wind, and with me and others out of wind,
I'm winding this thread down. I'll only speak up to object if anyone tries
to short circuit the discussion that Jim suggests should take place with
Creative Commons or tries to decide this issue before it is fully


Good night.




Lawrence Rosen

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

3001 King Ranch Rd., Ukiah, CA 95482

Office: 707-485-1242

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


From: Lawrence Rosen [mailto:lrosen@rosenlaw.com] 
Sent: Monday, December 09, 2013 1:26 PM
To: legal-discuss@apache.org
Cc: Lawrence Rosen
Subject: RE: New versions of CC licenses


I wrote to Jeff Thompson:

> As long as you honor the requirements of Apache License 2.0, 
> including section 4, then I will retract.

Jeff Thompson responded:
> I don't see any quotes, so I take that as an indication that you had
misunderstood this discussion and you have no actual support for your
previous allegations.  Can we please keep this discussion at least
tangentially related to the matter at hand?

I seem to recall you saying earlier in this long thread that IBM does not
need to pass along the Apache license for copies and derivative works of ASF
software that you distribute. Is that the case or not? That would be a
violation of AL2, Section 4. 


Sam Ruby wrote:

> It is bad enough that you made a public accusation without any evidence. 


I thought I was quoting Jeffrey. If not, I'm sure he'll correct me, and I'm
eager to be shown I'm wrong.


In the meantime, I would appreciate your recusing yourself from this
discussion about IBM policies and practices regarding Apache software.
Before on this list, in the middle of a discussion we were having with Jeff,
you closed down the discussion about an earlier JIRA issue and sided with
your own IBM company attorney. You are personally entitled to do so, but as
a board member at Apache you should avoid any conflict of interest,
particularly for something as important as IBM's procedures for distributing
Apache software and derivative works thereof and for acknowledging the
copyrights and licenses of Apache and its contributors.





From: Jeffrey Thompson [mailto:jthom@us.ibm.com] 
Sent: Monday, December 09, 2013 10:38 AM
To: legal-discuss@apache.org
Subject: RE: New versions of CC licenses


"Lawrence Rosen" <lrosen@rosenlaw.com> wrote on 12/09/2013 11:11:44 AM:

> Jeff Thompson wrote:
> > Larry,
> >     What conversation have you been following?  If you're going to 
> > accuse me and/or IBM of violating the Apache license, please provide
> > specific statements that I've made that support those accusations.  
> > If any statements that I've made have been misconstrued, I'll 
> > clarify them.  If you can't produce any statements that I've made 
> > that support your allegations, I expect a retraction.

> As long as you honor the requirements of Apache License 2.0, 
> including section 4, then I will retract.

I don't see any quotes, so I take that as an indication that you had
misunderstood this discussion and you have no actual support for your
previous allegations.  Can we please keep this discussion at least
tangentially related to the matter at hand?

Counsel, IBM Software Group

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