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From "Mattmann, Chris A (3980)" <chris.a.mattm...@jpl.nasa.gov>
Subject Re: ICLA US Government
Date Tue, 27 May 2014 18:52:43 GMT
Yay!

Sent from my iPhone

> On May 27, 2014, at 11:36 AM, "Evan Ward" <evan.ward@nrl.navy.mil> wrote:
> 
> So the legal department here has decided that I can sign the Apache ICLA. :)
> 
> Just as the NSA Accumulo decision was limited to that particular case,
> this decision is limited to my particular case and planned
> contributions. I believe there is still interest on this end to find a
> more general solution that will allow a greater range of contributions
> from the government, if Apache is willing.
> 
> Best Regards,
> Evan
> 
>> On Fri 16 May 2014 12:52:42 PM EDT, Evan Ward wrote:
>> 
>> 
>>> On 05/16/2014 12:03 AM, Lawrence Rosen wrote:
>>> 
>>> 
>>> Evan,
>>> 
>>> 
>>> 
>>> Perhaps a sarcastic argument from me will point out the silliness of
>>> your refusal to sign an Apache ICLA. Shall Apache users who want your
>>> public domain code simply file a Freedom Of Information Act (FOIA)
>>> request to get it and ignore the ICLA and your department's approval
>>> and your participation altogether?
>>> 
>>> 
>>> 
>>> If your software is truly public domain, then we don't actually need
>>> you to give us your code. It is ours regardless of what mechanism
>>> you use to hand it over to us. [I'm not speaking of government
>>> **confidential** code, so don't worry about my reckless grab!]
>>> 
>>> 
>>> 
>>> In that sense, your lawyers are right. The ICLA is a frivolity for
>>> public domain contributions.
>>> 
>>> 
>>> 
>>> But redundant or no, I believe I can describe Apache's mandatory
>>> procedures this way: In order for any **individual** to become an
>>> Apache contributor, **that person** must sign an ICLA.
>>> 
>>> 
>>> 
>>> This is entirely nondiscriminatory, by the way. I am a lawyer and
>>> haven't written a line of code in years. Yet I signed an ICLA when I
>>> got here just like everybody else. And so my contributions here, such
>>> as this email response, are licensed to Apache – and hence to you and
>>> to the US government -- under the Apache license. This is true even
>>> if my emails quote US law, as I occasionally do here. The fact that
>>> US law that I cite happens to be public domain is irrelevant. :-)
>>> 
>>> 
>>> 
>>> The ICLA is an individual requirement for you too if you want to
>>> become an Apache contributor.
>> 
>> 
>> I think I understand both sides of the argument, but it is a rather
>> subtle difference in position and I don't know which one is right.
>> Practically speaking if I sign the ICLA and become a commiter then I
>> want to be able to commit my work. So I think Apache an my agency need
>> to come to some sort of agreement on this issue.
>> 
>>> 
>>> 
>>> 
>>> Your lawyers are making a mountain out of a molehill. Is yours the
>>> only US government department that objects to Apache's long-held
>>> contribution requirements? Or do we have a bigger problem with US
>>> government agencies that we need to address more broadly?
>> 
>> 
>> As far as I can tell these agreements are evaluated on a case by case
>> basis with each Agency/Department free to make their own decisions.
>> 
>>> 
>>> 
>>> 
>>> Good luck convincing your department to follow Apache's procedures
>>> and to allow you personally to contribute – with an ICLA. I'm certain
>>> that this will serve the national interest in great **open source**
>>> software regardless of your lawyers' concerns about free **public
>>> domain** code of yours that everyone already has rights to.
>>> 
>>> 
>>> 
>>> I'm more than happy to speak directly with your attorneys without
>>> cluttering this list with legal arguments. I'd like to explain how
>>> Apache and many other FOSS projects have dealt with the "joint work"
>>> issue [17 USC 101] over the years. I might also help them understand
>>> why Open Source Initiative, despite many requests over the years to
>>> do so, has so far refused to certify the "public domain" as an "open
>>> source license." Encourage them to contact me directly if they want to.
>> 
>> 
>> Great. I feel that cutting out the middle man (me) would help you and
>> Kerry understand each other. I'll send a separate email of introductions.
>> 
>> Best Regards,
>> Evan
>> 
>>> 
>>> 
>>> 
>>> /Larry
>>> 
>>> 
>>> 
>>> Lawrence Rosen
>>> 
>>> Rosenlaw & Einschlag (www.rosenlaw.com <http://www.rosenlaw.com/>)
>>> 
>>> 3001 King Ranch Road, Ukiah, CA 95482
>>> 
>>> Cell: 707-478-8932 Fax: 707-485-1243
>>> 
>>> 
>>> 
>>> *From:*Evan Ward [mailto:evan.ward@nrl.navy.mil]
>>> *Sent:* Wednesday, May 14, 2014 10:02 AM
>>> *To:* legal-discuss@apache.org
>>> *Subject:* Re: ICLA US Government
>>> 
>>> 
>>> 
>>> Larry,
>>> 
>>> I passed along your message to our legal department and I've included
>>> the response below. They can provide a more detailed response
>>> sometime next week, if you would like one. From what I understand
>>> existing Apache code + my contributions can be released under the
>>> Apache license, but the ICLA specifically references my
>>> contributions, which by themselves can only be released in the public
>>> domain.
>>> 
>>> Regards,
>>> Evan
>>> 
>>> On 05/13/2014 05:51 PM, Kerry Broome wrote:
>>> 
>>> Essentially we disagree with how they are interpreting the two
>>> citations. The first citation is a memo about government
>>> employees using open source software. It has nothing to do with
>>> government developed software.
>>> 
>>> 
>>> 
>>> In the second citation, the joint work release specifically says
>>> that “the resulting work is a “joint work” (see 17 USC § 101)
>>> which is partially copyrighted and partially public domain and
>>> “[t]he resulting joint work as a whole is protected by the
>>> copyrights of the non-government authors and may be released
>>> according to the terms of the original open-source license.”
>>> However, the ICLA language says that we are granting a copyright
>>> liscense for our portion to them, which we don’t have and cannot
>>> do. I read that statement as Apache would have copyright over a
>>> version of their software with your code, which is correct, but
>>> we don’t agree with the language of the ICLA on how we transfer
>>> that software to them.
>>> 
>>> 
>>> 
>>> The question above their URL in the FAQ under “Q: Can government
>>> employees develop software and release it under an open source
>>> license?” specifically states our position on this. That is,
>>> “Software developed by US federal government employees (including
>>> military personnel) as part of their official duties is not
>>> subject to copyright protection and is considered “public domain”
>>> (see 17 USC § 105). Public domain software can be used by anyone
>>> for any purpose, and cannot be released under a copyright license
>>> (including typical open source software licenses).” That’s
>>> essentially what we changed with our modified ICLA.
>>> 
>>> 
>>> 
>>> Kerry
>>> 
>>> 
>>> 
>>> 
>>> 
>>> On 05/06/2014 07:05 PM, Lawrence Rosen wrote:
>>> 
>>> Evan Ward <evan.ward@nrl.navy.mil>
>>> <mailto:evan.ward@nrl.navy.mil> wrote:
>>> 
>>>> After a long review by my counsel, going many levels above my
>>> head, the
>>> 
>>>> result is still the same: I am not authorized to sign the
>>> Apache ICLA.
>>> 
>>>> ...
>>> 
>>>> If Apache can accept the public domain ICLA then we can
>>> 
>>>> put all this behind us and get back to coding.
>>> 
>>> 
>>> 
>>> Evan, I'm confused by this analysis. Even the Chief Information
>>> Officer of the U.S. Department of the Navy doesn't consider
>>> public domain software a form of open source. See the memorandum
>>> entitled "Department of the Navy Open Source Software Guidance
>>> <http://www.doncio.navy.mil/ContentView.aspx?id=312>". Here is
>>> what it says about public domain:
>>> 
>>> 
>>> 
>>> "Open Source Software: Computer software that includes source
>>> code that can be used and modified by the user; this software has
>>> been copyrighted and includes a license agreement restricting its
>>> use, modification, and distribution. Open Source Software is
>>> software that is copyrighted and licensed under a license
>>> agreement _that is not public domain software_ or freeware. The
>>> Open Source Initiative (OSI) web site (http://opensource.org)
>>> contains more information on open source and open source
>>> licenses." (Emphasis by underlining added.)
>>> 
>>> 
>>> 
>>> More particularly, I also refer your counsel to the DoD Open
>>> Source Software (OSS) FAQ
>>> <http://dodcio.defense.gov/OpenSourceSoftwareFAQ.aspx#Q:_Has_the_U.S._government_released_OSS_projects_or_improvements.3F>,
>>> published by the CIO of the U.S. Department of Defense, which
>>> specifically authorizes government employees to contribute code
>>> to open source software projects under the license(s) used by the
>>> existing project(s). That FAQ explains several ways that the
>>> government's public domain software can be contributed for FOSS,
>>> none of which involve a public domain dedication.
>>> 
>>> 
>>> 
>>> I'm sure the rest of the Apache community will be delighted when
>>> we can, as you say, "put all this behind us and get back to
>>> coding." But it is your lawyers, not ours, who are standing in
>>> the way.
>>> 
>>> /Larry
>>> 
>>> 
>>> 
>>> 
>>> 
>>> -----Original Message-----
>>> From: Evan Ward [mailto:evan.ward@nrl.navy.mil]
>>> Sent: Tuesday, May 6, 2014 12:26 PM
>>> To: legal-discuss@apache.org <mailto:legal-discuss@apache.org>
>>> Cc: private@commons.apache.org <mailto:private@commons.apache.org>
>>> Subject: Re: ICLA US Government
>>> 
>>> 
>>> 
>>> Hi All,
>>> 
>>> 
>>> 
>>> After a long review by my counsel, going many levels above my
>>> head, the
>>> 
>>> result is still the same: I am not authorized to sign the Apache
>>> ICLA.
>>> 
>>> My agency decided it would not take the NSA's position that the
>>> subtlety
>>> 
>>> of it was not worth arguing over ("de minimis non curat lex").
>>> 
>>> 
>>> 
>>> I can still sign the modified ICLA I proposed earlier that puts all
>>> 
>>> contributions in the public domain. It seems contradictory that
>>> Apache
>>> 
>>> projects can include public domain works, but Apache will not
>>> accept a
>>> 
>>> public domain ICLA. If I post my public domain work to GitHub and an
>>> 
>>> Apache commiter commits it, then Apache finds that perfectly
>>> acceptable.
>>> 
>>> If I sign an agreement with Apache placing all of my work in the
>>> public
>>> 
>>> domain and I commit it directly to Apache, then Apache would
>>> reject it!
>>> 
>>> Which situation has less risk? If Apache can accept the public domain
>>> 
>>> ICLA then we can put all this behind us and get back to coding.
>>> 
>>> 
>>> 
>>> Best Regards,
>>> 
>>> Evan
>>> 
>>> 
>>> 
>>>> On Mon 07 Apr 2014 11:28:04 AM EDT, Evan Ward wrote:
>>>> 
>>> 
>>>> Update: Heard back from Daniel Risacher today. Apparently the
>>> NSA had
>>> 
>>>> the same concerns we have, but decided not to argue about subtle
>>> 
>>>> differences ("de minimis non curat lex"). Still waiting to hear
>>> if this
>>> 
>>>> agency will take the same position.
>>> 
>>> 
>>>> Best Regards,
>>> 
>>>> Evan
>>> 
>>> 
>>>> On Thu 27 Mar 2014 03:10:55 PM EDT, Doug Cutting wrote:
>>> 
>>> 
>>>>> On Thu, Mar 27, 2014 at 6:46 AM, Evan Ward
>>> <evan.ward@nrl.navy.mil <mailto:evan.ward@nrl.navy.mil>>
>>> 
>>>>> wrote:
>>> 
>>> 
>>>>>> As Luc, said I can post the contributions to github (or JIRA)
>>> and make
>>> 
>>>>>> clear that the project as a whole is under the Apache
>>> License, and my
>>> 
>>>>>> patches are in the public domain. Then based on the Apache's
>>> legal FAQ
>>> 
>>>>>> and Larry's earlier comments Apache is both able and glad to
>>> accept the
>>> 
>>>>>> contributions.
>>> 
>>> 
>>> 
>>>>> If you can do this, then you can sign an ICLA and commit these
>>> changes
>>> 
>>>>> directly. When you attach to Jira, intentionally submitting to an
>>> 
>>>>> Apache-licensed project, you agree to the same terms as the ICLA.
>>> 
>>>>> What makes you think these are different?
>>> 
>>> 
>>> 
>>>>>> As I mentioned before, If someone from Apache wants to talk
>>> directly to
>>> 
>>>>>> the people here with the power to make a decision, I can
>>> provide contact
>>> 
>>>>>> information.
>>> 
>>> 
>>> 
>>>>> You do not need your employer's permission to sign an ICLA.
>>> You need
>>> 
>>>>> your employer's permission to contribute software under the Apache
>>> 
>>>>> License. Once you have that permission, whether you choose to
>>> attach
>>> 
>>>>> to Jira or sign an ICLA and commit directly makes no legal
>>> difference
>>> 
>>>>> to you or to your employer.
>>> 
>>> 
>>>>> Doug
>>> 
>>> 
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