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From Ted Dunning <ted.dunn...@gmail.com>
Subject Re: [Non-DoD Source] Suggested license mod or FAQ
Date Mon, 23 Jan 2017 16:21:38 GMT
On Mon, Jan 23, 2017 at 7:35 AM, Karan, Cem F CIV USARMY RDECOM ARL (US) <
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
> (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?

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