Re: CLA issues Was: java.sql.*
Leo Simons wrote: I'll also request everyone tries to ensure that you do not try and represent anything as legal fact unless its been thoroughly verified that it is indeed rather certain that what is being said is undisputable. Also, always try and provide as much references as possible. The problem root lies back in the times when the first laws where written to protect intellectual property. In UK, copyright laws were written, which originally only regulated reproduction and publishing rights, while in France the laws were centered around the droite d'auteur or author's right. Later, copyright laws were only adopted in the countries most strongly influenced by the UK, e.g. USA and probably Canada, while most other countries adopted the French idea of generally protecting the author as a static owner of his intellecutal property. In Germany, the author's rights are so strong, that they even to some extend apply for works produced by an employee or as part of a paid assignment. The issues I'm pointing out are regulated like this in the German Gesetz über Urheberrecht und verwandte Schutzrechte (Law on author's rights and related protective rights): §29(1): Das Urheberrecht ist nicht übertragbar, es sei denn, es wird in Erfüllung einer Verfügung von Todes wegen oder an Miterben im Wege der Erbauseinandersetzung übertragen. The author's right is not transferable, unless it is transfered to an inheritor in connection with the author's death. §§ 41 and 42 are regulating the author's Rückrufsrecht or revokation right. §41 is regulating the case, in which an exclusive usage right is not being practised, while §42 is regulating the author's right to revoke a usage right, in case of gewandelter Überzeugung, however that is to be translated properly to English. Modified/changed belief or conviction is a brave attempt. §42(2) regulates that the author's right to exercise his revokation right can not be excepted. §34 regulates the transfer of usage rights and sublicensing (Übertragung von Nutzungsrechten). Any such transfer must be agreed upon by the author, although it is restricted in which cases he may deny such transfer to take place. At least the way I interpret these regulations, it is not possible for the author to agree to a blanket sublicensing grant, as his rights depends on the exact conditions around the license transfer. Regulations on derivative works are spread across several paragraphs (§§14, 23, 39, etc). As in the issue with §42, derivative works may not be produced or published if they are against the author's belief (which may change with time). Tor
Re: CLA issues Was: java.sql.*
IANAL. This is not legal advice. On Mon, Feb 13, 2006 at 11:59:48AM +0100, Tor-Einar Jarnbjo wrote: Leo Simons wrote: I'll also request everyone tries to ensure that you do not try and represent anything as legal fact unless its been thoroughly verified that it is indeed rather certain that what is being said is undisputable. Also, always try and provide as much references as possible. The problem root lies back in the times when the first laws where written to protect intellectual property. In UK, copyright laws were written, which originally only regulated reproduction and publishing rights, while in France the laws were centered around the droite d'auteur or author's right. Later, copyright laws were only adopted in the countries most strongly influenced by the UK, e.g. USA and probably Canada, while most other countries adopted the French idea of generally protecting the author as a static owner of his intellecutal property. In Germany, the author's rights are so strong, that they even to some extend apply for works produced by an employee or as part of a paid assignment. The issues I'm pointing out are regulated like this in the German Gesetz ?ber Urheberrecht und verwandte Schutzrechte (Law on author's rights and related protective rights): ?29(1): Das Urheberrecht ist nicht ?bertragbar, es sei denn, es wird in Erf?llung einer Verf?gung von Todes wegen oder an Miterben im Wege der Erbauseinandersetzung ?bertragen. The author's right is not transferable, unless it is transfered to an inheritor in connection with the author's death. ?? 41 and 42 are regulating the author's R?ckrufsrecht or revokation right. ?41 is regulating the case, in which an exclusive usage right is not being practised, while ?42 is regulating the author's right to revoke a usage right, in case of gewandelter ?berzeugung, however that is to be translated properly to English. Modified/changed belief or conviction is a brave attempt. ?42(2) regulates that the author's right to exercise his revokation right can not be excepted. ?34 regulates the transfer of usage rights and sublicensing (?bertragung von Nutzungsrechten). Any such transfer must be agreed upon by the author, although it is restricted in which cases he may deny such transfer to take place. At least the way I interpret these regulations, it is not possible for the author to agree to a blanket sublicensing grant, as his rights depends on the exact conditions around the license transfer. Regulations on derivative works are spread across several paragraphs (??14, 23, 39, etc). As in the issue with ?42, derivative works may not be produced or published if they are against the author's belief (which may change with time). Yup, all that sounds pretty familiar, and thanks for writing it up. I disagree with some of how you map these laws onto what is stated in the Apache CLA, and I also don't think it necessarily results in the kinds of problems that you are worrying about. However, this is getting firmly off-topic for a development mailing list. I'm sure we're boring everyone to death; lets take this discussion elsewhere :-) cheers, Leo
Re: CLA issues Was: java.sql.*
I think the best thing to do here is consult a German lawyer, or some legal resource that has a clue about open source licensing. We aren't going to be able to answer any of this here in a definitive way. I will again note that for contributions made here, at the ASF, we do not ask for copyright transfer, but simply a license to the work. (That you have agreed to.) I would further argue that if the author must retain right to revoke the license or have control over derivative works, then open source is impossible in Germany. Given that there is plenty of open-source activity in Germany - and serious efforts - I think that we're misunderstanding something fundamental about German copyright law. geir Tor-Einar Jarnbjo wrote: Leo Simons wrote: I'll also request everyone tries to ensure that you do not try and represent anything as legal fact unless its been thoroughly verified that it is indeed rather certain that what is being said is undisputable. Also, always try and provide as much references as possible. The problem root lies back in the times when the first laws where written to protect intellectual property. In UK, copyright laws were written, which originally only regulated reproduction and publishing rights, while in France the laws were centered around the droite d'auteur or author's right. Later, copyright laws were only adopted in the countries most strongly influenced by the UK, e.g. USA and probably Canada, while most other countries adopted the French idea of generally protecting the author as a static owner of his intellecutal property. In Germany, the author's rights are so strong, that they even to some extend apply for works produced by an employee or as part of a paid assignment. The issues I'm pointing out are regulated like this in the German Gesetz über Urheberrecht und verwandte Schutzrechte (Law on author's rights and related protective rights): §29(1): Das Urheberrecht ist nicht übertragbar, es sei denn, es wird in Erfüllung einer Verfügung von Todes wegen oder an Miterben im Wege der Erbauseinandersetzung übertragen. The author's right is not transferable, unless it is transfered to an inheritor in connection with the author's death. §§ 41 and 42 are regulating the author's Rückrufsrecht or revokation right. §41 is regulating the case, in which an exclusive usage right is not being practised, while §42 is regulating the author's right to revoke a usage right, in case of gewandelter Überzeugung, however that is to be translated properly to English. Modified/changed belief or conviction is a brave attempt. §42(2) regulates that the author's right to exercise his revokation right can not be excepted. §34 regulates the transfer of usage rights and sublicensing (Übertragung von Nutzungsrechten). Any such transfer must be agreed upon by the author, although it is restricted in which cases he may deny such transfer to take place. At least the way I interpret these regulations, it is not possible for the author to agree to a blanket sublicensing grant, as his rights depends on the exact conditions around the license transfer. Regulations on derivative works are spread across several paragraphs (§§14, 23, 39, etc). As in the issue with §42, derivative works may not be produced or published if they are against the author's belief (which may change with time). Tor
Re: CLA issues Was: java.sql.*
Geir Magnusson Jr schrieb: I would further argue that if the author must retain right to revoke the license or have control over derivative works, then open source is impossible in Germany. Obiously it is not, as long as the software users accept the potenial risk of having to replace the software with something else. The revokation right is not my interpretation, but very clearly stated in the law. Given that there is plenty of open-source activity in Germany - and serious efforts - I think that we're misunderstanding something fundamental about German copyright law. It is unfortunately not very uncommon that German companies have a policy not to use OS software at all, partly because of the unclear legal status and potential problems, which may arise with a legal dispute, partly because of other issues, e.g. not having anyone to sue if something goes wrong. As I was working for Siemens 5-6 years ago, this limitiation was so strict, that we were not even allowed to use open source text editors (e.g. vi or Emacs) to write code, but were forced to use a very poor and annoying product, as there were not really many options when you have to find a commercial text editor for HP-UX. Tor
Re: CLA issues Was: java.sql.*
Tor-Einar Jarnbjo wrote: Geir Magnusson Jr schrieb: I would further argue that if the author must retain right to revoke the license or have control over derivative works, then open source is impossible in Germany. Obiously it is not, as long as the software users accept the potenial risk of having to replace the software with something else. The revokation right is not my interpretation, but very clearly stated in the law. It's not OSS if the author can do that arbitrarily. Think about it - you could wait until something is really popular, and then go shake down every user using it... Given that there is plenty of open-source activity in Germany - and serious efforts - I think that we're misunderstanding something fundamental about German copyright law. It is unfortunately not very uncommon that German companies have a policy not to use OS software at all, partly because of the unclear legal status and potential problems, which may arise with a legal dispute, partly because of other issues, e.g. not having anyone to sue if something goes wrong. Heh. As I was working for Siemens 5-6 years ago, this limitiation was so strict, that we were not even allowed to use open source text editors (e.g. vi or Emacs) to write code, but were forced to use a very poor and annoying product, as there were not really many options when you have to find a commercial text editor for HP-UX. Double heh. geir
Re: CLA issues Was: java.sql.*
Geir Magnusson Jr wrote: It's not OSS if the author can do that arbitrarily. Think about it - you could wait until something is really popular, and then go shake down every user using it... Not necessarily the users directly, but at least the enity, which is managing the reproduction and distribution rights. The point is to guarantee the author an adequate commision if e.g. more copies of his work are published than the author was able to expect when he granted the original publishing license. The idea does not match very well with free as in free beer, but this is indeed the legal situation in most countries. Heh. Double heh. Yes, heh. Tor
Re: CLA issues Was: java.sql.*
Tor-Einar Jarnbjo wrote: Geir Magnusson Jr wrote: Which code, and what were the terms of the NDA? The CLA is fairly lightwieght. What questions do you have for both? I thought I better split this, to prevent the discussion from getting too confusing. One thing I already pointed out with the Apache CLA is that it is very biased towards US copyright law. Well, the ASF is a US Corporation (non-profit) so those are the laws under which we operate. I am not a lawyer and I really have no clue if US copyright law, German Urheberrecht or both applies if I, living in Germany, am signing a contract with a US entity. The most serious legal crash is probably section 2: Grant of Copyright License. First problem is, that I can't grant you anything I currently don't have, a copyright on my work. The German counterpart, my Urheberrecht is not transferable and any license I give to use, redistribute, modify etc. the work may under some conditions be revoked. Any contract diverging from these principles is in Germany legally void. We aren't asking for a copyright transfer. You still retain any and all copyright on the work. What you are doing is granting a license to the work under the Apache License. Another specific issue related to my proposed Vorbis SPI for JavaSound donation, is if you regard third party source code to be classified as format documentation . To be more exact, the Vorbis format specification from the Xiph Foundation proved to contain several errors and their attitude when me pointing it out was, that the reference decoder is the only thing to be considered as a formal specification. This means of course, that at least when it comes to some estimated 20-40 lines of code, my Vorbis decoder implementation is at least based on the reference decoder from Xiph, which is AFAIK released under a BSD license. Yes, it's a BSD license. We think that's good :) We'd have no problems, because the software that is derivative of a BSD work is yours to license as you see fit. It's your IP. Patent issues are also unclear to me. At this point the CLA is really vague (§5), only demaning me to represent that my contribution is free of any patents that I am personally aware of. I have absolutely no ability to judge on that, which of course fulfils, that I am not personally aware of any claims, but depending on the contributors knowledge on patent and license law, this paragraph lies somewhere between meaningsless and very dependent on which country's patents and licenses are to be considered. Interesting. I find section 5 straightforward : - you attest that your contributions are your original work (IOW, you aren't contributing the work of someone else...) - you will provide complete details of any kind of restrictions *that you are aware of*. So this could be limits on the work because while it is your original work, it was a work for hire - paid for and owned by someone else. Or you implemented a patent. If you don't know of any patents on the work, don't go looking for them. We're not asking you to guarantee that there is no patent encumbrance, just that if you know of any, you tell us. geir
Re: CLA issues Was: java.sql.*
Hi Tor-Einer, I live in The Netherlands, which has all but identical copyright laws to Germany. My parents live in Germany and have looked at this kind of stuff before. I've talked to german ASF committers about legal stuff before who have had their companies look at things. I'm not a lawyer and this is not legal advice. Blah Blah. On Sat, Feb 11, 2006 at 12:47:20AM +0100, Tor-Einar Jarnbjo wrote: Geir Magnusson Jr wrote: Which code, and what were the terms of the NDA? The CLA is fairly lightwieght. What questions do you have for both? I thought I better split this, to prevent the discussion from getting too confusing. One thing I already pointed out with the Apache CLA is that it is very biased towards US copyright law. I am not a lawyer and I really have no clue if US copyright law, German Urheberrecht or both applies if I, living in Germany, am signing a contract with a US entity. Me neither, but I do know that at least the subset of international copyright law that is common to both jurisdictions applies, which should be sufficient. The most serious legal crash is probably section 2: Grant of Copyright License. First problem is, that I can't grant you anything I currently don't have, a copyright on my work. The German counterpart, my Urheberrecht is not transferable and any license I give to use, redistribute, modify etc. the work may under some conditions be revoked. Any contract diverging from these principles is in Germany legally void. Like Geir already mentioned, the CLA asks for a copyright license and not a copyright transfer. This is not a problem under any law in any western country. I don't think the ASF CLA has ever been tested in a German court and I somewhat doubt it ever will be. Legal departments from several German software vendors have reviewed the CLA and then approved its signing by their employees, which is probably as close as we can get to being sure that it is valid enough. Another specific issue related to my proposed Vorbis SPI for JavaSound donation, is if you regard third party source code to be classified as format documentation . To be more exact, the Vorbis format specification from the Xiph Foundation proved to contain several errors and their attitude when me pointing it out was, that the reference decoder is the only thing to be considered as a formal specification. This means of course, that at least when it comes to some estimated 20-40 lines of code, my Vorbis decoder implementation is at least based on the reference decoder from Xiph, which is AFAIK released under a BSD license. This is fine. Even if you copy-pasted something like 20 lines, it is debatable whether that's copyrightable work. Since we don't like debates, we can just add the appropriate (copyright) notices and the like to the relevant source code and NOTICE file(s) to comply with the BSD license. Patent issues are also unclear to me. Yup, they're unclear to everyone, including most European software vendors and the European Union. Big mess. At this point the CLA is really vague (?5), only demaning me to represent that my contribution is free of any patents that I am personally aware of. I have absolutely no ability to judge on that, which of course fulfils, that I am not personally aware of any claims, but depending on the contributors knowledge on patent and license law, this paragraph lies somewhere between meaningsless and very dependent on which country's patents and licenses are to be considered. Exactly. It makes big U.S. companies do a lot of work while it doesn't cause a lot of headache for average joe hacker who hates thinking about patents. Its by design; the main goal of clauses like this is to protect ASF contributors and ASF users from worrying about patents. hope this helps, cheers, Leo
Re: CLA issues Was: java.sql.*
Geir Magnusson Jr wrote: I thought I better split this, to prevent the discussion from getting too confusing. One thing I already pointed out with the Apache CLA is that it is very biased towards US copyright law. Well, the ASF is a US Corporation (non-profit) so those are the laws under which we operate. Yes, but US laws are not the laws under which probably most of the contributors are operating and not the laws applicable in most locations where Apache software is being used. Copyright is a legal area where US and British law deviate quite a lot from most other countries and assuming or expecting that US law is relevant if it comes to a legal dispute between e.g. a non-US contributor and a non-US software user or a non-US owner of related intelletual rights, is IMHO rather naive. License. First problem is, that I can't grant you anything I currently don't have, a copyright on my work. The German counterpart, my Urheberrecht is not transferable and any license I give to use, redistribute, modify etc. the work may under some conditions be revoked. Any contract diverging from these principles is in Germany legally void. We aren't asking for a copyright transfer. You still retain any and all copyright on the work. What you are doing is granting a license to the work under the Apache License. Well, you skip the most important part, that some statements in the paragraph are legally void in Germany, and probably most countries, not having an Anglo-Saxon style copyright law. Most problematic are probably the claims for an perpetual, irrevocable license and the claim for sublicensing rights and rights to produce derivative works. I really don't like to bother with legal regulations, but wether you or I like it, this agreement won't hold if proven in a German court and a German court will be responsible, if a German contributor for some reason should decide to take legal actions against some other German entity, which e.g. is producing, distributing or using a derivate work of the contributor's original work. The word German in the last sentence may be replaced with many other nationalities, without invalidating the content :-/ Tor
Re: CLA issues Was: java.sql.*
Tor, IANAL. On Mon, Feb 13, 2006 at 01:34:15AM +0100, Tor-Einar Jarnbjo wrote: assuming or expecting that US law is relevant if it comes to a legal dispute between e.g. a non-US contributor and a non-US software user or a non-US owner of related intelletual rights, is IMHO rather naive. Just about every web hosting company out there and just about every large software vendor out there ships or uses software licensed from the Apache Software Foundation under the Apache License, version 2.0, which is hence sublicensed under the Apache CLA and/or the Apache License from the ASF its contributors. The german government is also well-known for using a lot of ASF software! Just about every huge software vendor out there that has employees in a variety of countries has employees in a variety of countries which contribute under this same CLA, often while being paid by that same company to do so. Many of those vendors have also sent in CCLAs and or software grants. Some of the most skilled and knowledgeable intellectual property lawers, both European and American, have reviewed and/or constantly review the ASF its legal processes, documents, etc. So, IMHO, while you certainly shouldn't trust me or my word or my opinion to be correct when it comes to legal matters, if a document is up on http://www.apache.org/licenses/ as official paperwork and is further considered current best practice, you should not have to worry about it being naive (even if you should always worry about it being right). This is one of the major benefits of doing things under the wings of the ASF - you get to worry just a little less about this stuff. The ASF paperwork is about as close as you can get to a standard, with the possible exception of the FSF paperwork (in particular, you might be interested in http://www.fsfeurope.org/projects/fla/fla.en.html ). License. First problem is, that I can't grant you anything I currently don't have, a copyright on my work. The German counterpart, my Urheberrecht is not transferable and any license I give to use, redistribute, modify etc. the work may under some conditions be revoked. Any contract diverging from these principles is in Germany legally void. We aren't asking for a copyright transfer. You still retain any and all copyright on the work. What you are doing is granting a license to the work under the Apache License. Well, you skip the most important part, that some statements in the paragraph are legally void in Germany, and probably most countries, not having an Anglo-Saxon style copyright law. Most problematic are probably the claims for an perpetual, irrevocable license and the claim for sublicensing rights and rights to produce derivative works. I really don't like to bother with legal regulations, but wether you or I like it, this agreement won't hold if proven in a German court and a German court will be responsible, if a German contributor for some reason should decide to take legal actions against some other German entity, which e.g. is producing, distributing or using a derivate work of the contributor's original work. The word German in the last sentence may be replaced with many other nationalities, without invalidating the content :-/ I don't know enough about law or legal systems to be able to dispute the above, and I'm not going to try, but I do know that it does not match up with what I've previously been told by a variety of people. I believe current ASF counsel is all US-based. I would suggest seeking legal advice from a lawyer specializing in how open source licensing applies within German copyright law. I know there's a lawyer or two here in The Netherlands that specialize in this kind of licensing stuff, Germany must have some, too. I'll also request everyone tries to ensure that you do not try and represent anything as legal fact unless its been thoroughly verified that it is indeed rather certain that what is being said is undisputable. Also, always try and provide as much references as possible. There is enough confusion with regard to all this legal stuff already, and we should make sure we don't try to add to it. cheers! Leo
CLA issues Was: java.sql.*
Geir Magnusson Jr wrote: Which code, and what were the terms of the NDA? The CLA is fairly lightwieght. What questions do you have for both? I thought I better split this, to prevent the discussion from getting too confusing. One thing I already pointed out with the Apache CLA is that it is very biased towards US copyright law. I am not a lawyer and I really have no clue if US copyright law, German Urheberrecht or both applies if I, living in Germany, am signing a contract with a US entity. The most serious legal crash is probably section 2: Grant of Copyright License. First problem is, that I can't grant you anything I currently don't have, a copyright on my work. The German counterpart, my Urheberrecht is not transferable and any license I give to use, redistribute, modify etc. the work may under some conditions be revoked. Any contract diverging from these principles is in Germany legally void. Another specific issue related to my proposed Vorbis SPI for JavaSound donation, is if you regard third party source code to be classified as format documentation . To be more exact, the Vorbis format specification from the Xiph Foundation proved to contain several errors and their attitude when me pointing it out was, that the reference decoder is the only thing to be considered as a formal specification. This means of course, that at least when it comes to some estimated 20-40 lines of code, my Vorbis decoder implementation is at least based on the reference decoder from Xiph, which is AFAIK released under a BSD license. Patent issues are also unclear to me. At this point the CLA is really vague (§5), only demaning me to represent that my contribution is free of any patents that I am personally aware of. I have absolutely no ability to judge on that, which of course fulfils, that I am not personally aware of any claims, but depending on the contributors knowledge on patent and license law, this paragraph lies somewhere between meaningsless and very dependent on which country's patents and licenses are to be considered. Tor