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From Jeffrey Thompson <jt...@us.ibm.com>
Subject Re: New versions of CC licenses
Date Sat, 07 Dec 2013 20:02:46 GMT

Richard Fontana <rfontana@redhat.com> wrote on 12/07/2013 01:48:29 AM:

> Correct, but it must also be acknowledged that ALv2 does not say "You
> *may* offer terms that restrict exercise of the rights under this
> License by any recipient *as to the Work*".

Right, it doesn't.  As I explained, it doesn't need to.  There is no
generally applicable copyright licensing rule that says you can't pass on
fewer rights.  You try to make a case below that the Apache license
contains language from which you can infer an intent to impose that
restriction.  That's fair.  If the license imposes the restriction, then it
does.  But, if the license does not, then the restriction does not exist.

> This is significant because ALv2 is not entirely silent on the
> issue. It says that recipients of the Work or Derivative Works must be
> given a copy of ALv2. Why? The answer is surely not attribution, which
> is handled by other provisions. Life would be simpler for everyone if
> there were no requirement to include the upstream license text, if it
> really is meant to serve no purpose.

It seems obvious that it serves the purpose of informing the recipient that
the code is also available under the AL2.0 license.

> And again the key statement is this, in section 4:
>   You may add Your own copyright statement to Your modifications and
>   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.
> I suppose one interesting thing is the fact that this sentence is in
> the license at all;

I agree that its technically unnecessary and likely was included to make
sure that certain GPL interpretations weren't imposed on this license.

> And then this sentence contains a condition: "provided Your use [etc.]
> of *the Work* otherwise complies with the conditions stated in this
> License". This sentence is drawing a distinction between
> "modifications to the Work" and "such Derivative Works as a whole", on
> the one hand, and "the Work", the originally-licensed thing, on the
> other.

Yes, because it wants to make the point that, notwithstanding the fact that
you might be licensing your product under the AL2.0, you (as the creator of
the derivative work) must comply with your obligations (e.g., section 4) as
to the code you received (e.g., the Work).  What's confusing about that?
It doesn't say that the AL2.0 terms must be used when you license the Work
as part of your Product.  If Apache wanted to do that, there were very
clear ways to say it.

> The Work continues to exist, and the conditions of ALv2
> continue to apply to it. The licensee's downstream recipient is
> getting the Work (as part of some Derivative Work, perhaps) along with
> a copy of the ALv2 text. In trying to make sense of this whole
> sentence, I must conclude that it embodies the view that the portions
> of the 'Derivative Work as a whole' that are 'the Work' remain
> governed solely by ALv2, and cannot be supplemented by more
> restrictive terms. The ultimate end user is getting an ALv2 license
> for the Work, and that is why ALv2 requires Derivative Works to
> include copies of ALv2, since otherwise it would be completely
> pointless.

You're explicitly contradicting yourself.  AL2.0 expressly says one can
license "the Derivative Work as a whole" under their own terms, not "the
Derivative Work as a collection under your own terms with the Work being
licensed under AL2.0".

You've made tremendously great leaps of reasoning here, especially since
your conclusion directly contradicts the license author's stated policy of
creating a license that permits commercial licensing of the code.

Counsel, IBM Software Group
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