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From "Roy T. Fielding" <field...@gbiv.com>
Subject Re: SGA Alterations
Date Thu, 17 Dec 2015 20:59:55 GMT
> On Dec 15, 2015, at 1:52 PM, Todd Lipcon <todd@apache.org> wrote:
> 
> Hi Jim,
> 
> Here's the response from our attorney:
> 
> - The change in the first Whereas clause indicates that we are granting a “license,”
not conveying ownership / title.  The word used “contribute” has no meaning in the copyright
act.  Congress drafted the copyright act and included the word “license” not “contribute”.
 So it should be clarified.  Clearing this ambiguity helps Apache so that its “license”
rights are certain.

Irrelevant -- whereas clauses are for communicating background information.

> -          Paragraph 1:  “now” is inserted because Cloudera cannot grant a license
to a patent not yet owned or issued.  By using language contrary to the patent act, it could
have the effect of rendering the actual grant faulty.  Apache would not benefit from that.
 The word “now” should be included so its clear that it applies to patents currently owned
and issued.

Bullshit! That isn't true. Licensing falls under the general category of agreements, not just
the patent act,
and it is certainly possible to agree to do something in the future even if it can't be done
today.
Otherwise, all those jokes about first-born sons wouldn't have been invented.

The suggested change would fail to accomplish the goals of the license. An inventor has a
year
to submit a patent and the PTO may spend up to 20 years examining it before the patent itself
is granted
and thereafter "owned".  The goal of our license is to prevent submarine submission of code
for us to make
popular while the owner waits for such a patent to be granted, which would allow them to sue
anyone
who makes use of their contribution after *we* made it popular.

> -          Paragraph 2 indicates that the grant is made w/o investigation and based on
knowledge.  This is not a “hedge”.  This language makes it consistent with the warranty
exclusion included in the agreement.  Without this clarification, the warranty exclusion could
be seen as being at odds with the grant.  Apache does not benefit from this ambiguity. 

We are not interested in such an exclusion.  It is users of Apache software that benefit from
honest
contributions of code.

> -          Paragraph 2 indicates that the statement is made as of the Effective Date.
 There is no obligation to monitor future developments or future actions.  Again, such a prospective
obligation would be inconsistent with the warranty exclusion.  Without this, the conflict
could be read against the drafter (Apache), and it would not benefit them from this result.

> I also add that by making the agreement more accurate, more consistent with law and less
internally ambiguous it makes these types of reviews and discussions less common.  The Apache
person indicates that others have sought to have changes made, but Apache consistently says
"no".  I think Apache benefits from having a more readily acceptable agreement.  This could
speed their process without introducing any risk.

There is no conflict.  At worst, reading it against Apache would have the suggested effect
because there is no other date provided.  Not specifying a date means the same agreement can
be used or understood to apply to each contribution over time.

At best, the suggested change allows a deliberately disingenuous company to make a "grant"
to the ASF during a patent application process and, later, after the patent is granted, enforce
their patent while saying the grant was not a deceptive practice because of the effective
date.

> He also suggested that speaking directly with a licensing attorney on the ASF side might
be easier than going through us non-lawyers as intermediaries :)

I am not surprised, since it avoids the people with the most experience.

....Roy


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