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From Jeffrey Thompson <jt...@us.ibm.com>
Subject RE: New versions of CC licenses
Date Thu, 05 Dec 2013 13:55:09 GMT

"Lawrence Rosen" <lrosen@rosenlaw.com> wrote on 12/04/2013 07:52:07 PM:
> Jeffrey Thompson wrote:
> >  We've had this discussion before.  The Apache license does not say
> >  that it must become a part of the license under which the Apache
> >  user licenses the resulting product to its customer.  It merely
> states that
> >  a copy of the Apache license needs to be provided.  This was part of
the
> >  design.

> Which design are you referring to? I'm reading the OSD....
>
> The Apache License applies to all works distributed by ASF. A
> contributor's license applies to her contributions included in that
> Apache work. There is nothing that a downstream licensor can do to
> change that short of requesting new licenses from the licensors.

Right.  If you don't want to receive the code under the Apache license, you
need to talk to the copyright owners and get a separate license.  I'm not
sure what that has to do with our conversation, though.

>
> > There is no general copyright principle that says that a licensee has
> > to pass on all rights that it received from its licensor.  If you
> can provide
> > a cite to one, please do.
>
> How does IBM avoid passing on those rights?

I didn't say that one could distribute the code without passing on ANY
rights.  I said one is allowed to distribute the code without passing on
ALL OF the rights.

>  The second sentence of
> 17 USC 103(b) says: "The copyright in [compilations and derivative
> works] is independent of, and does not affect or enlarge the scope,
> duration, ownership, or subsistence of, any copyright protection in
> the preexisting material [e.g., contributions]."

I'm saying that, broadly speaking, there are 2 types of OSS licenses --
ones which don't necessarily require you to change your pre-existing
licenses and ones that do.  Apache, MIT, BSD, EPL (for executables, not
source), etc. are in the former camp.  GPL, CC-BY, etc. are in the latter.

Is your point that because the copyright in the derivative work is
separate, you are free to ignore those provisions of the GPL and CC-BY and
distribute your derivative work under your own license terms (e.g., without
stating that certain components are licensed to you under the GPL)?

If that's not your point, I can't understand why you're quoting this
statute.

>
> There is also an Apache License provision that says almost the same
> thing. Richard Fontana quoted section 4d:
>
> You ... may provide additional or different license terms and
> conditions for use, reproduction, or distribution of Your
> modifications, or for any such Derivative Works as a whole, provided
> Your use, reproduction, and distribution of the Work otherwise
> complies with the conditions stated in this License.

You may provide your derivative works (to your customers) under your own
terms.  Great, that's what I'm saying.

... provided you comply with the conditions in the license.  Fine.  What's
the condition that the distribution would not be complying with by using
its own terms?

There are no conditions in section 1.
There are no conditions in section 2.
Last sentence of section 3 could be interpreted as a condition, but its
really just a limitation on the patent grant n the prior sentence.  In any
event, it would not be a condition that turns on the user's outbound
license.

Section 4 -- has conditions.
4.1.  Give a copy of the Apache license -- check.  No obligation to change
the pre-existing license agreement.
4.2.  Mark modifications -- check
4.3.  Retain notices in the source -- check
4.4   Retain Notices file -- check

Section 5, contributions -- not relevant here
Section 6, trademarks -- not relevant here
Section 7, warranty -- not relevant here
Section 8, liability -- not relevant here
Section 9, adding warranty terms -- not a condition, but an explicit
permission -- and doesn't relate to the outbound licensing terms.

I'm out of license.  I don't see any condition that requires a distributor
to modify its outbound license.

> This is not a big burden for Apache licensees, because the
> conditions we impose are minimal. See section 4 of the license.
> Almost anyone can satisfy those conditions trivially. The same easy
> implementation can be said for the BSD and CC-BY licenses.

CC-BY says "You may not offer or impose ... different terms ... to the
Licensed Material if doing so restricts exercise of the Licensed Rights."

That sentence explicitly places a requirement on the outbound license which
will likely not be satisfied by most commercial licenses since most
commercial licenses prohibit modification and redistribution.  There is NO
equivalent provision in BSD or Apache.

>          The conditions you impose on your customers are your own
> business, and you are free to wrap our Apache software, along with
> your own software, under any license you choose.

If "wrapping" means applying terms to the original parts of the combined
work, while passing thru the Apache license for the Apache works, it is
certainly possible to craft a license that does that.  In effect, it would
say "Here, Mr. Customer, is a license that covers 90% of the work and this
Apache license covers this part over here."  But, that's not commercially
reasonable for long term software agreements that cover multiple products
and multiple versions of products.  You don't know that Apache/BSD/CC-BY
components are going to be in the products yet since some of them may not
have been developed.

Customers react poorly to the concept that the supplier can change its
software license after the agreement is signed merely because the supplier
decided to include an OSS component.  So, while logically it works that the
supplier could have a license that says that certain terms apply "unless I
say otherwise", its not going to be generally acceptable to customers.

> Again, I don't know why you and Luis are complaining about CC-BY.
> The GPLv3's DRM conditions are far more strict than those of CC-BY.
> Nothing in CC-BY requires the disclosure of "complete corresponding
> source code" nor even the "source code" at all.

I haven't addressed the DRM conditions.


Jeff
Counsel, IBM Software Group


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