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From Evan Ward <evan.w...@nrl.navy.mil>
Subject Re: ICLA US Government
Date Fri, 16 May 2014 16:52:42 GMT

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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>
>     > 
>
>      
>
>  
>


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