Re: CLA issues Was: java.sql.*

2006-02-13 Thread Tor-Einar Jarnbjo

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.*

2006-02-13 Thread Leo Simons
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.*

2006-02-13 Thread Geir Magnusson Jr
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.*

2006-02-13 Thread Tor-Einar Jarnbjo

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.*

2006-02-13 Thread Geir Magnusson Jr



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.*

2006-02-13 Thread Tor-Einar Jarnbjo

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.*

2006-02-12 Thread Geir Magnusson Jr



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.*

2006-02-12 Thread Leo Simons
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.*

2006-02-12 Thread Tor-Einar Jarnbjo

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.*

2006-02-12 Thread Leo Simons
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.*

2006-02-10 Thread Tor-Einar Jarnbjo

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