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From Jeffrey Thompson <jt...@us.ibm.com>
Subject Re: New versions of CC licenses
Date Sat, 07 Dec 2013 19:32:36 GMT

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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