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From "Lawrence Rosen" <lro...@rosenlaw.com>
Subject RE: Modify CLA for cases where there is no copyright (e.g., U.S. federal government employees)
Date Wed, 20 Aug 2014 21:13:21 GMT
Hi David,


I appreciate your question, but I'm not sure if it is based on a real
problem or a misunderstanding by (some!) U.S. government attorneys.


If the government agency signing the CCLA is contributing an actual
copyrighted work, then we need the CCLA to be signed as is. If the work is
not copyrighted (i.e., the work is written by a U.S. government employee in
the course or scope of his/her duties, or the work predates the current
copyright act), then the contribution is ours whether the agency gives it to
us or not.


So what's the problem? This issue of public domain content in software works
applies even to contributions by corporations. They don't refuse to sign a
CCLA even though some of what they give us isn't actually copyrighted or
copyrightable. Why is a government agency special in that context?





From: Wheeler, David A [mailto:dwheeler@ida.org] 
Sent: Wednesday, August 20, 2014 12:41 PM
To: legal-discuss@apache.org
Subject: Modify CLA for cases where there is no copyright (e.g., U.S.
federal government employees)


I believe the CCLA needs to be modified so that it can handle the case where
there is no copyright for the software; here are the details.


The current Apache Corporate CLA
(https://www.apache.org/licenses/cla-corporate.txt) assumes that all
software is under copyright. This assumption is not always true.  Under U.S.
law (section 105 of the copyright law), a "work of the United States
government" is "a work prepared by an officer or employee" of the federal
government "as part of that person's official duties.".  In general, such
works are not entitled to domestic copyright protection under U.S. law.
This is a problem; the entire CCLA depends on an agreement with the "you"
who is the copyright holder; without copyright there is no "you".


This problem has already occurred at least once.  When Accumulo was
contributed to the Apache project, one of the problems was that there was no
copyright at all in most of the work (see
https://issues.apache.org/jira/browse/LEGAL-100).  The U.S. government
lawyers in this particular case decided that "because everybody involved
understands the implications of part of the work being in the public domain,
NSA can sign the original CCLA" - even though there is was no U.S. copyright
in a significant part of the work.  However, there is no guarantee that
other government lawyers would reach the same conclusion, and in any case
this problem impedes the release of some software developed with U.S.
government funding.  I'd like to eliminate barriers ahead-of-time.  Other
organizations, such as the IEEE, have already modified their agreements to
handle this case; ASF can do the same.


The CCLA should be modified to handle cases where there is no copyright
holder, in a way that changes nothing if there *is* a copyright holder.  The
current text says:

"You" (or "Your") shall mean the copyright owner or legal entity authorized
by the copyright owner that is making this Agreement with the Foundation."

Perhaps an additional sentence could be added: "If there is no copyright
owner, 'you' (or 'your') shall mean the legal entity who can confirm and
provide credible evidence that there is no copyright."

I'm sure *real* lawyers can provide much better text than this, since I am
*not* a lawyer.  I'm just looking for a solution.


Thank you very much.


--- David A. Wheeler


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