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From "Lawrence Rosen" <lro...@rosenlaw.com>
Subject RE: Third Party FOSS licenses
Date Sun, 02 Aug 2015 23:31:12 GMT
Henri Yandell and I have been having a civilized conversation about mixing Apache and MPL software.
He permits me to share parts of it.

 

I modified Henri's definitions of "mix" and "appears with" by adding the underlined phrase
about derivative works. These are now polite phrases instead of "ground beef" or "pee in a
pool":

 

Mix and create a derivative work: When MPL source is added to existing Apache 2.0 source (the
same file) and creates a derivative work such that the Apache 2.0 source must now be licensed
under MPL.

 

Appears with: When MPL source is place beside existing Apache 2.0 source files, such that
the Apache 2.0 source does not need to be licensed under the MPL.

 

You also have to create a derivative work. That is much rarer than you imagine. When you are
merely mixing FOSS code for functional convenience (into the same or different files) and
it has nothing to do with the copyrightable aspects of the works (e.g., DRM protection for
the binary, packaging it into one TAR file, making separate programs convenient to install),
then you have almost certainly not created a derivative work. That is not worth a $35 copyright
application fee since any competent programmer in the world can replace that easily without
infringement. For free. The only sour spot is that you are required by almost EVERY FOSS license
to post notices of what you have mixed. 

 

This is also why I believe that the GPL static linking doctrine is ridiculous. You also have
to create a derivative work!

 

The two paragraphs above ought to be reviewed and approved by real attorneys working for real
companies. I'm tired of talented programmers expounding otherwise on this legal issue. But
if correct, it makes the combining of FOSS software generally trivial.

 

It does mean that you may more often ask your lawyer the following question, "Am I creating
a derivative work?" rather than "Can I mix or appear with?" 

 

If we're prepared to mix MPL inside Apache code, such that it can't be reversed, I think Apache
should move to using MPL 2.0 as it's default license.

I have never suggested that and would never. The Apache License is an excellent FOSS contributor
and distribution license for lots of projects. I have myself written such FOSS licenses (e.g.,
AFL 3.0, in our Category A) that are fully compatible with and equally generous as ALv2. Our
Apache projects currently understand third party code and we don't randomly start mixing it
up in our releases. This is a GOOD THING. Nothing needs to change but our Third Party Licensing
Policy. We just need to stop projects here from being much worried about mixing FOSS code
and making it appear together, or at least to understand the legal definitions.

 

Only when an Apache contributor creates a derivative work of an MPL work (as perhaps by mixing
it intimately and profoundly with ALv2 software) must the mixed result be under the MPL. 
Nothing wrong with that. Also that's free for anyone to do or undo. 

 

Now our board members will attempt to define "intimately" and "profoundly," or maybe they'll
ask their attorneys....

 

/Larry

 

This email is licensed under CC-BY-4.0.

 

Lawrence Rosen

"If this were legal advice it would have been accompanied by a bill."

 

From: Henri Yandell [mailto:bayard@apache.org] 
Sent: Sunday, August 2, 2015 11:03 AM
To: Lawrence Rosen <lrosen@rosenlaw.com>
Subject: Re: [OFFLIST] RE: Third Party FOSS licenses

<snip> 

 


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