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From Evan Ward <evan.w...@nrl.navy.mil>
Subject Re: ICLA US Government
Date Tue, 27 May 2014 18:36:15 GMT
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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>>
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>> >>
>>
>> >
>>
>>
>>
>>
>>
>

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