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From "Wheeler, David A" <dwhee...@ida.org>
Subject RE: Modify CLA for cases where there is no copyright (e.g., U.S. federal government employees)
Date Wed, 20 Aug 2014 22:00:06 GMT
Larry Rosen proclaimed:

> 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.

Fair enough.  Let's talk!

> If the government agency signing the CCLA is contributing an actual copyrighted work,
then we need the CCLA to be signed as is.

Sure. I'm not arguing that.

I certainly have no trouble with a government agency signing the CCLA as-is when the government
actually *holds* the copyright; in that case they look just like a company.  In many cases
the government is not the copyright holder, but it does have "unlimited rights" as defined
by the Federal Acquisition Regulation (FAR), and I think that also works with the existing
CCLA.  Under the FAR, an organization with "unlimited rights" can basically do the same things
that a copyright holder can do (for details, see the FAR).  After re-reading the start of
the CCLA, I *think* I can make an argument that is also covered by the CCLA.  The CCLA 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." I think in this case that the contract
sets up the government as the "legal entity authorized by the copyright owner".

My problem with the current CCLA text is that it doesn't acknowledge that there might be NO
copyright in the contribution.

> 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.

Not so.  It isn't yours - it isn't ANYONE's. And the CCLA doesn't acknowledge the difference.

More to the point, the CCLA as currently written only applies to a "you" who has the copyright.
 When it's a work of the U.S. government there is no copyright, so there's no one who can
claim to be the "you" in the obvious way.

> 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?

There is a FUNDAMENTAL difference.  A company contribution may *incorporate* materials that
are not copyrighted or copyrightable... but in practically all cases they can easily point
to some material that *IS*.  The bar for copyrightability is low, so it's pretty easy to do
*something* that meets the requirement for copyrightability.  As a result, a corporate lawyer
can in good conscience sign the CCLA in the typical cases seen by ASF, because they can point
to the copyrighted portions that justify them as being a lawful signatory.

For the U.S. federal government, the situation is fundamentally different.  As long as only
employees develop the software as part of their official duties, it doesn't matter how much
creativity is represented by their work... it is *never* copyrightable in the US.

Now imagine that the U.S. federal government wants to contribute such a work to the ASF (it
could happen!).  Immediately the government lawyers start reviewing the CCLA, and realize
that they aren't copyright holders... and thus cannot in good conscience sign the CCLA.  Many
government lawyers will not sign agreements with false premises.

I hope that makes it clearer why government contributions can be fundamentally different than
contributions from companies.  In short, the difference is based in U.S. law.

(Disclaimer: I'm not a lawyer, and this is not legal advice.)

--- David A. Wheeler

From: Lawrence Rosen [mailto:lrosen@rosenlaw.com]
Sent: Wednesday, August 20, 2014 5:13 PM
To: legal-discuss@apache.org
Cc: Lawrence Rosen
Subject: RE: Modify CLA for cases where there is no copyright (e.g., U.S. federal government

Hi David,


From: Wheeler, David A [mailto:dwheeler@ida.org]
Sent: Wednesday, August 20, 2014 12:41 PM
To: legal-discuss@apache.org<mailto: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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