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From "Wheeler, David A" <dwhee...@ida.org>
Subject Modify CLA for cases where there is no copyright (e.g., U.S. federal government employees)
Date Wed, 20 Aug 2014 19:40:56 GMT
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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