Jeff,

 

The Apache License granted by ASF to its software is to everyone, not just IBM. The CC-BY license is to everyone, not just IBM. You seem to be focused on sublicensing but I don't understand the relevance to our discussion. Your commercial sublicenses are your own concern, and I'm certain you add lots of commercial terms to those sublicenses that we at Apache don't care about.

 

IBM can satisfy the Apache License easily by honoring the redistribution conditions in AL section 4. IBM can satisfy the CC-BY license in almost exactly the same way. Nothing in either license allows you to hide from your customers the fact that you are distributing the Apache and CC-BY works to them. [1] The only difference is that the CC-BY licensor can require you to /remove/ her attribution notice. You can easily satisfy these simple obligations on behalf of your commercial customers, or omit the CC-BY components altogether.

 

Regarding the TPM requirement of CC-BY: As I described, you are not hiding the Apache and CC-BY software presence in your commercial products. Even if you use TPM in your products to protect the versions that you distribute, your website can easily refer people to Apache for the original source!

 

/Larry

 

[1] Apache License section 4(a): "You must give any other recipients of the Work or Derivative Works a copy of this License; and...."

 

Lawrence Rosen

Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com)

3001 King Ranch Rd., Ukiah, CA 95482

Office: 707-485-1242

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

 

From: Jeffrey Thompson [mailto:jthom@us.ibm.com]
Sent: Friday, December 06, 2013 11:31 AM
To: legal-discuss@apache.org
Subject: Re: New versions of CC licenses

 

Jim Jagielski <jim@jaguNET.com> wrote on 12/06/2013 06:33:05 AM:
>
> On Dec 5, 2013, at 4:30 PM, Richard Fontana <rfontana@redhat.com> wrote:
> >
> > You keep asserting this but I do not think you are correct. The
> > general rule in the US, though it is a state law issue, is that you
> > need explicit permission to pass on a proper subset of rights received
> > as to the original material.


. . .
 
> +1
>

The fact that Richard doesn't think I'm correct, notwithstanding, his statement of the law is incorrect.  You do not need explicit permission to pass on a subset of rights.  The reason why derives from the basic structure of copyright itself.  Unfortunately, this will take a couple of minutes.  I hope no one is too bored.

Copyright is a government granted monopoly on the right to perform certain actions with respect to creative works.  US Copyright law provides six basic exclusive rights:  reproduction, modification, distribution, public performance, public display, and digital audio transmission (ignoring moral rights which are somewhat supported in US Law and the quasi-right of access created by the DMCA).

If you're not performing one of those actions or even if you are, but you fall within one of the statutory exceptions (such as fair use, library rights, etc.), you do not need permission from the copyright owner to do what you are doing.  So, reading a book?  Great.  No copyright right needed.  "Reading" isn't a granted exclusive right.  

The structure of the legal regime is that you're allowed to do anything you want, unless you infringe one of the exclusive rights granted by Title 17 of the US Code.

If you want to take advantage of one of the exclusive rights, you need permission.  If you're granted permission, the scope of that permission controls what you are allowed or not allowed to do.  If I have permission to make 1 copy of a book, that's what I get to do -- make 1 copy of the book.  If the permission doesn't say anything about how I have to make the copy, when I can make the copy, or any other details, the restrictions do not exist.  Only that which is specified in the permission grant (i.e., license) applies.  Of course, ambiguities need to be resolved when they are present, but generally, if there are no restrictions, none are implied.

So, if I enter into a license agreement with a publisher of a book to be able to print and distribute up to 50 physical copies of that work (invoking 2 exclusive rights, the right of reproduction and the right of distribution), I'm good as long as I say within the 4 corners of that license agreement.  There might be region limitations in the distribution right grant.  If there are, I can only offer those copies for sale within that region.  If there are no limitations, I can offer those copies anywhere I want.  

The end user of a physical book needs no copyright grant to use the book as intended.  Therefore, there is no need for the distributor to grant me the right to pass on any of my license rights and no right to do that would be implied in the absence of specific language.  On the other hand, if I'm distributing e-books and the end user is making a copy of the work by downloading it from my site, then I would need to be able to authorize the end user to make that copy (otherwise the end user would be an infringer).  Normally, the license agreement would explicitly provide me with that right, but even if the agreement were silent on that point, the context makes it clear that copies are being made by the user and a court, if presented with the question, would very likely infer the right to pass on the permission to make the copy.  However, in no event would anyone even think of imposing on me an obligation to provide all of my rights to make and distribute copies to the end user.  

The basic structure of copyright is that only specific rights are exclusive to the author and that only things that infringe one of those rights are prohibited.  Anything not prohibited is permitted.  That's why, unless the right to distribute says that you must pass on all rights, a licensee is under no such obligation.  



Copyright has been around for over 300 years.  While I can understand that someone who is looking only at OSS licenses might conclude that it would make sense to have a rule that says you have to pass on all rights, unless given explicit permission otherwise.  However, it would make no sense for any other situation -- not books, not music, not maps, not even commercial software.  Software licenses don't have special rules.  Software is treated as a literary work under the US Copyright law and inherits all of the rules and practices that have developed since the first US copyright act in 1790.  And remember, software wasn't even explicitly a subject of copyright in the US until the 1980 CONTU amendment to the 1976 Copyright Act.  

The purpose of a rule of construction is to give effect to the most likely intent of the parties absent specific guidance in the license.  Richard is proposing the existence of a rule of construction that says, in the absence of a statement otherwise, a license must pass on all rights it obtained from the licensor when it distributes a work.  

Honestly, what is the chance that the development of US Copyright Law during the almost 200 years between 1790 and 1980 would include a rule of construction that created a default obligation on a licensee that made absolutely no sense for any copyrightable work that existed prior to 1980?  It's not like they knew OSS was going to show up at some point in the future and make the rule of construction useful.

So, if Richard wants to propose that that rule of construction exists, he needs to prove it.  Neither he, nor Larry, has provide a cite to a case or statute that even implies such a rule.  I'm assuming that, for Richard, he hasn't looked at the history of the Copyright Law and its application in industries outside of OSS, but Larry should know better.  I'm starting to strongly suspect that Larry is allowing his desire for a particular legal rule to overshadow the actual statute and caselaw.  

Jeff
Counsel, IBM Software Group


(apologies for the length of the post)