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From Evan Ward <evan.w...@nrl.navy.mil>
Subject Re: ICLA US Government
Date Tue, 11 Mar 2014 19:52:31 GMT
Luc, you have expressed my frustrations better than I could have. :)

There seems to still be a good bit of confusion over the issues here. I 
will attempt to describe the situation as I see it, in FAQ form. Please 
correct me if I'm wrong on any point (IANAL). Hopefully this will 
provide a common ground of what we know, and remove any remaining 
misconceptions. Then, agreeing on the current situation, we will be 
equipped to make a decision.

1. Do you have the necessary authority to contribute?

Yes. My employer has granted me permission to contribute everything that 
I have in the past, and everything that I will contribute in the future, 
as long as I am a US government employee. The condition that US law puts 
on the contributions, and the condition that my employer has chosen to 
put on the contributions is that all contributions are in the Public Domain.

2. Can Public Domain works be copyrighted?

No. It is illegal to claim copyright for a work when you, in fact, do 
not have that copyright.

3. Does including Public Domain works affect the license of the Apache 

No. Compilations and modifications to Public Domain material are 
copyrighted normally. The Public Domain parts (patches) could still be 
extracted, but they would be mostly useless without the rest of the 
Apache Project's code base.

4. So why do you want to sign an ICLA?

Apache requires all committers to sign an ICLA in order to make the 
relationship with Apache explicit. An ICLA is necessary for write access 
to the repository. It is not necessary for me to continue to make Public 
Domain contributions. An ICLA is also not necessary for Apache to 
continue to accept my Public Domain contributions.

4. Does the Apache ICLA require that copyright exists in the Contribution?

Yes. It reads "You hereby grant ... copyright license to ... Your 
Contributions" and "You represent that you are legally entitled to grant 
the above license." There are no exceptions. (Section 7 does not apply 
because my contributions are my original creation.) In order to grant a 
copyright license to a work, copyright must exist in the work.

5. If I sign the Apache ICLA will I be able to continue contributing, as 
a US government employee?

No. Since the Apache ICLA requires that copyright exists for all 
Contributions that I author, and since copyright does not exist in the 
contributions I make, therefore signing the Apache ICLA legally forces 
me to stop contributing.

6. Is there an ICLA that permits me to continue contributing. What do 
other organizations do for US government authors?

Yes. This issue appears frequently when publishing papers. Most 
publishers (e.g. IEEE, AIAA) word their copyright agreements carefully 
and include special US government sections. For example, the relevant 
part of the IEEE copyright form [1] reads, "The undersigned hereby 
assigns ... all rights under copyright that _may_ exist in and to
the above Work." (I added the emphasis to the key word _may_). This lets 
US government sign the agreement because it only grants a license if the 
copyright exists. No copyright license is granted in the case of the US 

When publishers have agreements that requires that copyright exists in 
the work I have to send them this letter explaining why I can't sign it [2]:

    The U.S. Copyright Act provides that federal government employees
    cannot copyright material prepared in the course of their
    employment. As an employee of the [name department or agency], I
    have no copyright interest to assign, and upon the recommendation of
    the Office of General Counsel, [acronym for department or agency],
    must decline to sign the copyright assignment.

    Although for the above reasons I am technically unable to assign any
    copyright to [name publication], I still request and authorize you
    to publish the submitted article in accordance with your standard
    editorial policies. I hope this letter will be sufficient
    authorization for your needs to enable you to consider it favorably.

As Luc eloquently described in his email, we have been through this 
legal swamp in the context of an Apache Licensed open source project 
before. After ~6 months of persistence we finally arrived at an ICLA 
that was approved by both my employer's legal department, and the legal 
department of the open source project. I attached the agreement to a 
previous email and have included the relevant part:

    2. Grant of Right to Use. Subject to the terms and conditions of this
    Agreement, You hereby grant to CS in name of OREKIT project and to
    of software distributed by CS in name of OREKIT Project a perpetual,
    non-exclusive, no-charge, royalty-free, irrevocable right to use, to
    prepare derivative works of, publicly display, publicly perform,
    and distribute Your Contributions and such derivative works. The
    is contributed to the public domain under no license. If the
    Contribution is
    combined with copyrighted contributions, the resulting “joint work” is
    partially copyrighted and partially public domain. The public domain
    may be extracted from the joint work and used by anyone for any purpose.

You may have noticed that this agreement substitutes "right to use" for 
"copyright license." The right to use my contributions without fear of 
lawsuits is all that Apache really wants. (IIUC) This license grants 
that safety.

Not having an ICLA will not prevent me from making Public Domain 
Contributions, or Apache from accepting them. The ICLA only determines 
if I commit my patch directly, or if someone else has to commit it for 
me. Since the ICLA is just about expediting the current contribution 
process, let's sign the Public Domain ICLA and get back to doing what 
Apache does best: producing world class software.

Best Regards,

[1] http://www.ieee.org/documents/IEEECForm121302pdf_1.pdf
[2] http://cendi.dtic.mil/publications/04-8copyright.html#326

On 3/9/2014 3:08 PM, Luc Maisonobe wrote:
> Le 09/03/2014 18:56, Ralph Goers a écrit :
>> On Mar 9, 2014, at 10:20 AM, Gilles <gilles@harfang.homelinux.org>
>> wrote:
>>> On Sat, 8 Mar 2014 19:17:33 -0800, Ralph Goers wrote:
>>>> On Mar 8, 2014, at 6:18 AM, Luc Maisonobe <luc@spaceroots.org>
>>>> wrote:
>>>>> Hi Gilles,
>>>>> Le 07/03/2014 20:24, Gilles a écrit :
>>>>>> Hi.
>>>>>> On Fri, 7 Mar 2014 14:02:40 -0500, Evan Ward wrote:
>>>>>>> On 03/06/2014 05:16 PM, Ted Dunning wrote:
>>>>>>>> Evan,
>>>>>>>> Doesn't the ICLA put the onus on you to decide what you
>>>>>>>> have the right to contribute and what you don't have the
>>>>>>>> right to contribute?  Isn't that a sufficient carve-out?
>>>>>>> I know I have the "right to contribute", but I don't have
>>>>>>> the right to grant a copyright license. In that way I don't
>>>>>>> think it is a sufficient carve-out. What happens when I
>>>>>>> have all the necessary permissions to contribute something,
>>>>>>> but I don't have the authority to copyright it?
>>>>>> What's the difference between future contributions without
>>>>>> this document being signed and past contributions, also
>>>>>> without this document having been signed?
>>>>>> What's the problem with including public domain work into an
>>>>>> Apache product?
>>>>> The problem is neither future contributions nor public domain,
>>>>> the problem is that in order to get write access as a
>>>>> committer, Evan has to sign the ICLA. The Apache processes
>>>>> requires this for everyone, even if in this case it may seem
>>>>> overkill as Evan work can always be copied and published as it
>>>>> is not subject to copyright (at least in the US).
>>>> As I noted in a post to legal-discuss, if Evan objects to the
>>>> ICLA over the copyright clause then we really shouldn’t accept
>>>> any of his contributions as that implies that he is not
>>>> contributing them under the Apache License (specifically, section
>>>> 2).
>>> Is it really what he states? IIUC, it's rather that he finds it
>>> impossible to talk about something (i.e. "copyright") which he
>>> thinks does not exist for his contributions.
>> Yes, that seems to be the issue (or rather, non-issue as all the
>> replies I’ve seen seem to believe).
>>> Even so, can't he provide permission (to use his "public domain"
>>> work) even if it is not necessary (from his point-of-view)?
>> Permission to do what?  He can certainly say that he is granting the
>> right to "reproduce, prepare derivative works of, publicly display,
>> publicly perform, sublicense, and distribute Your Contributions and
>> such derivative works”, since the code is public domain. What he has
>> a problem with are the words that precede that - “copyright license”.
>> Again, IMO there really is no issue here as the text that follows
>> “copyright license” is what we really care about and public domain
>> works surely meet that requirement.
>>> Then, isn't section 4 that could also be the problem? I mean: a
>>> non-proprietary project could grab a "public domain" work, include
>>> it in its non-free/non-open/whatever software without retaining any
>>> of the attributions.
>> Section 4 is not a problem. Evan knows where the source came from and
>> knows whether or not it is OK for Apache to use it.
>>> It seems that by contract with the US government, Evan contributes
>>> "public domain" work; IIUC, he seems to think that the code he'd
>>> write could be legally "extracted" from the Apache repository and
>>> reused _without_ proper (according to the Apache licence)
>>> attribution.
>> I don’t see that as the issue at all.  All I have read indicates that
>> the issue is that with a public domain work there is no copyright to
>> grant so he feels he can’t comply with section 2 of the ICLA (and
>> section 2 of the Apache license).  I happen to believe that if there
>> is no copyright to grant then this is not a problem, but I’m not the
>> one who is questioning signing the ICLA.
> As far as I know, the Apache foundation does not require copyright
> transfer (contrary to Free Software Foundation for example).
>> FWIW, yes - public domain contributions could be extracted and reused
>> without attribution.  I don’t think anybody here really cares about
>> that.  They are far more likely to use the work as a whole, which
>> will be under the Apache license.
> Well, the FAS says some attribution is required:
> <http://www.apache.org/legal/resolved.html#can-works-placed-in-the-public-domain-be-included-in-apache-products>
> The problem as I understand it is really a problem of administration. We
> need an ICLA to protect us and our contributors in case of claims if
> someone consider the code should not be published by us under our
> license. Here, we do *not* need this as there is no associated risk, and
> we have already acknowledged this as per FAQ above. However, we still
> say "you have to sign the ICLA". This is becoming a Kafka-like situation.
> Seriously, can't we just accept him as a committer knowing his work is
> under public domain and we already include public domain work in several
> apache products?
> The modified ICLA Evan showed was the result of similar negociation for
> the Orekit project I manage in may day job. I really considered this a
> good compromise as a signed proof of goodwill either we or Evan could
> show up in case of problem, and it covers everything we need to be
> allowed to publish derived work from these contributions, by merely
> including them in larger products.
> Apache should remain community over code, not administration over people.
> best regards,
> Luc
>>> Can't we just say that it is not so?  I.e. just as a non-free
>>> software is allowed to not retain attribution of a public domain
>>> contribution, Apache software is allowed to require that users
>>> abide by its license even for the part that comes from public
>>> domain contributions.
>> I don’t believe this is even an issue.
>> Ralph
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