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From "Karan, Cem F CIV USARMY RDECOM ARL (US)" <cem.f.karan....@mail.mil>
Subject RE: [Non-DoD Source] Suggested license mod or FAQ
Date Mon, 23 Jan 2017 17:18:27 GMT
> -----Original Message-----
> From: Ted Dunning [mailto:ted.dunning@gmail.com]
> Sent: Monday, January 23, 2017 11:22 AM
> To: legal-discuss@apache.org
> Subject: Re: [Non-DoD Source] Suggested license mod or FAQ
>
> On Mon, Jan 23, 2017 at 7:35 AM, Karan, Cem F CIV USARMY RDECOM ARL (US) 
> <cem.f.karan.civ@mail.mil < Caution-
> mailto:cem.f.karan.civ@mail.mil > > wrote:
>
>
> 	> Regardless, it isn't possible for one of your contributions to cause us
> 	> headaches when it is entirely in the public domain.  By definition, that
> 	> means nobody has the standing in which to cause such a headache, nobody 
> can
> 	> successfully file suit (at least under copyright), and thus no
> 	> court case can proceed.
> 	>
> 	> The danger for headaches comes from other people who might claim (truly 
> or
> 	> not) to own the copyright in spite of the work's origin.
> 	> There's not much we can do in the license about that.
>
> 	And this is the crux of the problem.  What happens when a work that is in 
> the
> 	public domain is licensed under ASL?  Since the ASL relies on copyright, a
> 	reasonable person might think that the work itself has copyright.  What
> 	happens when someone finds out that it doesn't?  Can a smart lawyer
> 	successfully argue that since the clauses that rely on copyright are 
> invalid
> 	for works that are in the public domain then the entire license is invalid 
> for
> 	that work[1]?  I'm thinking in particular about clauses 7&8
> 	(Caution-https://www.apache.org/licenses/LICENSE-2.0 < 
> Caution-https://www.apache.org/licenses/LICENSE-2.0 > ), but to some
> degree the patent
> 	clause as well.
>
>
>
> No.
>
> The work is a derived work that *includes* a bit of public domain stuff. As 
> long as the public domain part has not been modified, the
> original license applies. As soon as it is modified, then that is a 
> derivative work subject to copyright. The situation is the same as if I
> include a USGS image (public domain, no copyright) in a book I write. The 
> book has a copyright, the image doesn't. I don't gain ownership
> over the image. Public domain is not viral. (and yes, I just went through 
> this more formally)
>
> I, at least, understand your point and your concerns.
>
> But there is no danger to the Apache license of the entire work because some 
> part of the content has no copyright. Further, the ICLA
> covers this situation because it asserts that the contributor either owns or 
> has the rights to contribute their contributions. They obviously
> have the right to contribute public domain material, as does anybody.
>
> Would it make your lawyers happier if we put a special header on public 
> domain materials? That header could say that their original form
> is in the public domain, but any additions may be covered by the Apache 
> license?

Thank you Ted, you've answered my concerns.  I don't think our lawyers would 
be worried about a special header, but I can ask.  I'll pass along what you've 
said to them as well; I think that they'll agree with you, but I want to make 
sure.

Thanks,
Cem Karan


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