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From Christopher <ctubb...@apache.org>
Subject Re: [Non-DoD Source] Suggested license mod or FAQ
Date Thu, 19 Jan 2017 23:16:25 GMT
On Wed, Jan 18, 2017 at 10:14 PM Roy T. Fielding <fielding@gbiv.com> wrote:

> > 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
>   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.
> 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.

You hinted at Cem's concerns when you said "at least under copyright". Cem
isn't concerned about copyright infringement, but liability lawsuits.

> 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.
> 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.
I agree. I think it'd be useful for government projects to add this sort of
phrasing to their NOTICE files, if they care about copyright applicability.

However, it'd be a bit tedious for other projects, like many of those in
the ASF, which might contain portions which are public domain. So, while
there are no current plans to make any changes to the license, I think it'd
probably be good to consider some sort of generic severability clause to
accompany any future versions of the license, if it ever becomes necessary
or desirable to produce a new version of the license.

> 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.
That's not entirely true. In addition to explicitly providing permissions,
the right to redistribute is conditional on certain restrictions in section
4, paragraphs a-d. For the portions which are public domain, these
restrictions cannot be carried.

> ....Roy
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