Sorry. I may be one of the parties to the back-channel dialogue Larry mentioned.
Below is the full text of my e-mail to Larry. I omitted to copy the entire group originally because I assumed (maybe wrongly) that the broader group would be bored stiff by a discussion of Copyright Act technicalities and more general topics outside the scope of the form of copyright notice question. Note, Cliff advised me that he is a Member and Officer but not a "Board Member" as I incorrectly identified him in my e-mail to Larry. Sorry again, Jim Barnett Sr. Counsel BEA Systems, Inc. "Larry: I am one of BEA System's attorneys. I believe that you may have met Cliff Schmidt (Apache Board Member) who works with me at BEA. I am pretty sure that Cliff routinely quotes excerpts from one of your books to me. : ) I think your post below is interesting and agree that a literal reading of Section 401 of the Act does not support the "or its licensors, as applicable" addition. Unfortunateley when I looked at this issue a couple of years ago, I wasn't able to locate much caselaw or other authority on what exactly is meant by the "name of the owner" versus "a generally known alternative designation of the owner." The "...or its licensors, as applicable" addition probably would not qualify as a "generally known" alternative designation for the other owners/contributors. Nonetheless, I think limiting the notice to ASF-only in some cases might be as problematic as adding the (likely ineffective) reference to other licensors. Contributors to Apache projects do not assign the copyright in contributions to Apache but rather retain ownership and merely license the works to ASF. If the work in question is a "compilation work" or "derivative work" as many Apache projects are, the Apache-only notice should be sufficient. In some cases, however, Apache project output may not strictly conform to the definitions of either "derivative work" and "compilation" as defined by Sections 103 and 101 of the Act. For example, how do we measure whether a work was "preexisting" in the context of a collaborative development environment like an Apache project? (Also, there is authority suggesting protection offered to "compilations" is "thin.") Playing "what if" for a second, what if a work distributed under the ASF-only notice was found in a dispute context to be neither a compilation nor a derivative work? My concern is that the infringer would have "innocent infringer" status because the notice would not have identified the true owner(s). It is my understanding that the "or its licensors, as applicable" language was introduced to try and maintain some "willful infringement" argument (actual notice, inquiry notice, etc.) in cases where the work turns out to be neither derivative work nor a compilation. A weak argument could be better than none at all. The legally "safer" alternative (i.e., including a separate copyright notice for each project contributor) wasn't palatable to ASF. In other non-Apache OSS-related contexts I've seen every single contributors' copyright notice provided in the license file. While it may be prophylactic it does look funny when a 1 page license is prefaced by 2 pages of copyright notices. Finally, there may be a practical benefit in being reminded that entities other than Apache may own copyrights in a work available from Apache. It triggers a due diligence exercise on the would-be licensee's end to examine the project that created the work to get a feel for who the main contributors were. Things that might influence a decision whether to license the work could include verifying that individual contributors to the project really were functioning as individuals and not tainted by some undisclosed employer-employee relationship. Please don't take me for a paranoid, but the SCOX-IBM saga would have sounded far fetched to me before it was filed. In certain cases where BEA has looked into incorporating ASF-licensed code into products, we've researched the contributor makeup as best we could. Where there are many individual contributors who nevertheless have e-mail addresses such as "oracle.com," "microsoft.com," "ibm.com," etc., we have delayed licensing the code until we were able to validate that the "possible" employer companies also had executed a corporate level contributor agreement for that project. I work in San Jose but live nearer to your neck of the woods. I commute to San Jose from Petaluma. If you are ever in San Jose (or Petaluma for that matter), let me know. I would enjoy meeting you. I also would really like a sanity check on how BEA reads the LGPL as the issue of LGPL compatibility with Apache projects seems to come up more and more often. Regards, Jim Barnett Sr. Counsel BEA Systems, Inc. 408-570-8442" -----Original Message----- From: Rodent of Unusual Size [mailto:[EMAIL PROTECTED] Sent: Wednesday, February 16, 2005 11:41 AM To: [EMAIL PROTECTED] Cc: [EMAIL PROTECTED] Subject: Re: FW: tools to fix Apache License headers -----BEGIN PGP SIGNED MESSAGE----- Lawrence Rosen wrote: > Just a follow-up to the email copied below.... I'm working back-channel with > various legal folks involved in Apache to get this resolved. Worry not.... Everyone: I ask that you refrain from the temptation have 'back-channel' discussions. The legal-discuss list exists for open discussion, not for announcing conclusions. In other words, please bring the 'back-channel' stuff here, and keep it here. In the open. It's a bit awkward because Robyn isn't on this list, but nevertheless. A lot of time and thought went into the decision. If you've thought of an aspect missed by all the people who were involved, they deserve to know what it is. If you think you have but it was, in fact, addressed, then they are entitled to discuss it with you. - -- #ken P-)} Ken Coar, Sanagendamgagwedweinini http://Ken.Coar.Org/ Author, developer, opinionist http://Apache-Server.Com/ "Millennium hand and shrimp!" -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.2.4 (MingW32) Comment: Using GnuPG with Mozilla - http://enigmail.mozdev.org iQCVAwUBQhOhtZrNPMCpn3XdAQFahAP7Bbz37zenemejOUtmONUBqBXRa1rAKE/Z VdcA1UQ30jCObq66YD7bmvQSX31q4Fm/7h8Lwp7C+fbqcJSlevIE2OdB3tHahtuo qEmMzXeqJAha4zaKbKAw2mvm80vqt8jvYJdiY66C9M8Vd2WcMRDgyDUzAR5N2exF nc6UYz/9N00= =gzkt -----END PGP SIGNATURE----- --------------------------------------------------------------------- DISCLAIMER: Discussions on this list are informational and educational only, are not privileged and do not constitute legal advice. --------------------------------------------------------------------- To unsubscribe, e-mail: [EMAIL PROTECTED] For additional commands, e-mail: [EMAIL PROTECTED] --------------------------------------------------------------------- DISCLAIMER: Discussions on this list are informational and educational only, are not privileged and do not constitute legal advice. --------------------------------------------------------------------- To unsubscribe, e-mail: [EMAIL PROTECTED] For additional commands, e-mail: [EMAIL PROTECTED]
