Return-Path: X-Original-To: apmail-legal-discuss-archive@www.apache.org Delivered-To: apmail-legal-discuss-archive@www.apache.org Received: from mail.apache.org (hermes.apache.org [140.211.11.3]) by minotaur.apache.org (Postfix) with SMTP id 735821149D for ; Wed, 20 Aug 2014 19:42:59 +0000 (UTC) Received: (qmail 72878 invoked by uid 500); 20 Aug 2014 19:42:59 -0000 Delivered-To: apmail-legal-discuss-archive@apache.org Received: (qmail 72668 invoked by uid 500); 20 Aug 2014 19:42:59 -0000 Mailing-List: contact legal-discuss-help@apache.org; run by ezmlm Precedence: bulk List-Help: List-Unsubscribe: List-Post: Reply-To: legal-discuss@apache.org List-Id: Delivered-To: mailing list legal-discuss@apache.org Received: (qmail 72656 invoked by uid 99); 20 Aug 2014 19:42:58 -0000 Received: from athena.apache.org (HELO athena.apache.org) (140.211.11.136) by apache.org (qpsmtpd/0.29) with ESMTP; Wed, 20 Aug 2014 19:42:58 +0000 X-ASF-Spam-Status: No, hits=2.2 required=5.0 tests=HTML_MESSAGE,SPF_PASS X-Spam-Check-By: apache.org Received-SPF: pass (athena.apache.org: domain of dwheeler@ida.org designates 129.246.225.241 as permitted sender) Received: from [129.246.225.241] (HELO mail4.ida.org) (129.246.225.241) by apache.org (qpsmtpd/0.29) with ESMTP; Wed, 20 Aug 2014 19:42:51 +0000 Received: from exim2-out.ida.org ([129.246.101.14]) by mail4-backend.ida.org with ESMTP; 20 Aug 2014 15:40:58 -0400 Received: by exim2-out.ida.org with local-smtp for ; Wed, 20 Aug 2014 15:40:52 -0400 Received: by exim2-out.ida.org with esmtp for ; Wed, 20 Aug 2014 15:40:52 -0400 Received: from EXCH07-4850.ida.org ([129.246.101.159]) by exch07-hc2.ida.org ([129.246.101.156]) with mapi; Wed, 20 Aug 2014 15:40:58 -0400 From: "Wheeler, David A" To: "legal-discuss@apache.org" Date: Wed, 20 Aug 2014 15:40:56 -0400 Subject: Modify CLA for cases where there is no copyright (e.g., U.S. federal government employees) Thread-Topic: Modify CLA for cases where there is no copyright (e.g., U.S. federal government employees) Thread-Index: Ac+8qpM7NYAOsLQsRiWYUfdocRj2FA== Message-ID: <9F8E44BC27E22046B84EC1B9364C66A1AFFAAE0A23@EXCH07-4850.ida.org> Accept-Language: en-US Content-Language: en-US X-MS-Has-Attach: X-MS-TNEF-Correlator: acceptlanguage: en-US Content-Type: multipart/alternative; boundary="_000_9F8E44BC27E22046B84EC1B9364C66A1AFFAAE0A23EXCH074850ida_" MIME-Version: 1.0 X-Virus-Checked: Checked by ClamAV on apache.org --_000_9F8E44BC27E22046B84EC1B9364C66A1AFFAAE0A23EXCH074850ida_ Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: quoted-printable I believe the CCLA needs to be modified so that it can handle the case wher= e there is no copyright for the software; here are the details. The current Apache Corporate CLA (https://www.apache.org/licenses/cla-corpo= rate.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 "wor= k of the United States government" is "a work prepared by an officer or emp= loyee" of the federal government "as part of that person's official duties.= ". In general, such works are not entitled to domestic copyright protectio= n under U.S. law. This is a problem; the entire CCLA depends on an agreeme= nt with the "you" who is the copyright holder; without copyright there is n= o "you". This problem has already occurred at least once. When Accumulo was contrib= uted to the Apache project, one of the problems was that there was no copyr= ight 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 th= at "because everybody involved understands the implications of part of the = work being in the public domain, NSA can sign the original CCLA" - even tho= ugh there is was no U.S. copyright in a significant part of the work. Howe= ver, there is no guarantee that other government lawyers would reach the sa= me conclusion, and in any case this problem impedes the release of some sof= tware developed with U.S. government funding. I'd like to eliminate barrie= rs ahead-of-time. Other organizations, such as the IEEE, have already modi= fied their agreements to handle this case; ASF can do the same. The CCLA should be modified to handle cases where there is no copyright hol= der, in a way that changes nothing if there *is* a copyright holder. The c= urrent 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 ow= ner, 'you' (or 'your') shall mean the legal entity who can confirm and prov= ide 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 --_000_9F8E44BC27E22046B84EC1B9364C66A1AFFAAE0A23EXCH074850ida_ Content-Type: text/html; charset="us-ascii" Content-Transfer-Encoding: quoted-printable

I believe the CC= LA needs to be modified so that it can handle the case where there is no co= pyright for the software; here are the details.

 

The current Apache Corpor= ate CLA (https://www.apache.org/licenses/cla-corporate.txt) assumes that al= l software is under copyright. This assumption is not always true.  Un= der U.S. law (section 105 of the copyright law), a “work of the Unite= d States government” is "a work prepared by an officer or employ= ee" of the federal government "as part of that person's official = duties.".  In general, such works are not entitled to domestic co= pyright protection under U.S. law.  This is a problem; the entire CCLA= depends on an agreement with the “you” who is the copyright ho= lder; without copyright there is no “you”.

 

This problem has a= lready occurred at least once.  When Accumulo was contributed to the A= pache project, one of the problems was that there was no copyright at all i= n most of the work (see https://issues.apache.org/jira/browse/LEGAL-100). &= nbsp;The U.S. government lawyers in this particular case decided that ̶= 0;because everybody involved understands the implications of part of the wo= rk 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 w= ork.  However, there is no guarantee that other government lawyers wou= ld reach the same conclusion, and in any case this problem impedes the rele= ase 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; A= SF can do the same.

 

The CCLA should be modified to handle cases where the= re 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 thi= s Agreement with the Foundation.”

= Perhaps an additional sentence could be added: “If there is no copyri= ght owner, ‘you’ (or ‘your’) shall mean the legal e= ntity who can confirm and provide credible evidence that there is no copyri= ght.”

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

 

= --_000_9F8E44BC27E22046B84EC1B9364C66A1AFFAAE0A23EXCH074850ida_--