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From "Roy T. Fielding" <field...@gbiv.com>
Subject Re: [Non-DoD Source] Suggested license mod or FAQ
Date Tue, 24 Jan 2017 04:26:32 GMT
On Jan 24, 2017, at 12:35 AM, Karan, Cem F CIV USARMY RDECOM ARL (US) <cem.f.karan.civ@mail.mil>
wrote:

>> -----Original Message-----
>> From: Roy T. Fielding [mailto:fielding@gbiv.com]
>> Sent: Wednesday, January 18, 2017 10:14 PM
>> To: legal-discuss@apache.org
>> Subject: Re: [Non-DoD Source] Suggested license mod or FAQ
>> 
>>> On Jan 6, 2017, at 6:33 AM, Karan, Cem F CIV USARMY RDECOM ARL (US) 
>>> <cem.f.karan.civ@mail.mil> wrote:
>>> 
>>> Hi, my name is Cem Karan, and I'm one of those Government employees
>>> that Chris was talking about.  Is it also possible to clarify the
>>> definition of Licensor in clause 1?  As a Government employee, my
>>> works are in the public domain, so there is no copyright holder.  I'd
>>> hate to have one of my contributions cause headaches because of that.
>>> 
>>> Thanks,
>>> Cem Karan
>> 
>> FWIW, I don't know why government lawyers can't read the civil code
>> 
>>  Caution-https://www.copyright.gov/title17/92chap1.html#105
>> 
>> and figure out that "Copyright protection under this title is not available 
>> for any work of the United States Government" is not the same
>> as saying government employees are incapable of owning copyright.
>> The work they are paid to do on behalf of USG (or related to their 
>> government job) is in the public domain.  The rest of their work (the
>> boundaries of which we have no means to assess) might or might not be in the 
>> public domain.
> 
> Our lawyers are well aware of the difference.  The problem *IS* the work that 
> civil servants produce in the course of their work.  See next comment below.
> 
>> 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?

Nothing.

> 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?  

Still nothing.

> 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]?

They aren't invalid. They permit things that might otherwise be constrained. The permission
does not depend on the constraints existing. The permissions don't disappear if there are
no constraints.

Regardless, severability does not apply to unilateral licenses. It is not a contract.

>  I'm thinking in particular about clauses 7&8 
> (https://www.apache.org/licenses/LICENSE-2.0), but to some degree the patent 
> clause as well.
> 
>> There are no plans to make any further changes to the Apache License.
>> As mentioned previously, a person concerned about the applicability of the 
>> license to a public domain work can simply add that "the
>> license's copyright terms only apply to the extent that copyright is 
>> actually owned or licensable by the Contributors".  That statement can
>> be placed anywhere you like outside the license itself.
> 
> So in addition to the ASL, there will be a separate notice containing the 
> above, and possibly a notice beyond that regarding warranty, liability, and 
> patent issues... it sounds like public domain code will have to live under the 
> equivalent of dual licensing, where the ASL would apply to material that had 
> copyright, and some separate-but-essentially-identical notice for the public 
> domain code to cover the non-copyright issues that the ASL already covers, 
> correct?  Is it possible to write such a notice/license that is interoperable 
> with the ASL?

No, all of those are things you can do if you imagine they are necessary in some context.
I will never need those things, nor will anyone else whose lawyer has a reasonable understanding
of software licensing and liability.

>> The reason that isn't said in the license is because the copyright terms 
>> merely provide a permission that isn't needed without copyright.
>> It is completely irrelevant whether they apply to any given piece of work in 
>> the public domain.
>> 
>> ....Roy
> 
> I see your point.  Do you understand mine?
> 
> Thanks,
> Cem Karan
> 
> [1] I am *not* saying that the license is invalid for works with copyright!  I 
> am only considering the case where a work doesn't have copyright.

I understand your point. However, this is not a debate. Our government does release code under
the Apache License while saying the parts they created are in the public domain, and encourages
its employees to contribute to upstream projects based on the expectation that such public
domain work will be incorporated under the same license as the surrounding code. This is not
and has never been an issue.

....Roy



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