[License-review] Submission of the European Space Agency Public Licenses (ESA-PL) for approval
Patrice-Emmanuel Schmitz
pe.schmitz at googlemail.com
Fri Feb 10 08:33:51 UTC 2017
Regarding the arbitration clause, the EUPL v1.2 (currently a draft, but
Commission states that it will be published in the coming months) provides
more freedom than v1.1 because it can be complemented by any kind of
specific agreements that are compatible with the licence.
Regarding copyleft, I wrote that the EUPL has no strong v/s weak copyleft
versions, but I did not wrote that the EUPL was strong copyleft.
This is because (like L. Rosen) I am really sceptical concerning the legal
reality of the "strong copyleft" assumption that linking two programs
creates a derivative.
My position is based on recitals 10 and 15 of Directive 2009/24 EC on the
legal protection of computer programs, where reproduction of code needed
for interoperability escapes to copyright infringement.
2017-02-09 17:16 GMT+01:00 Carsten Gerlach <cgerlach at tcilaw.de>:
> Use of the EuPL was indeed considered, in particular since the EuPL is
> also drafted with the European legal framework in mind. However, the
> EuPL does not fit ESA's legal requirements, which e.g. includes the need
> of an arbitration clause in accordance with the ESA convention. The
> choice of law clause does not fit, since some ESA member states are not
> members of the European Union. Also, as you stated, the EuPL is a strong
> Copyleft license, but ESA's use cases require weak Copyleft and
> permissive licensing as well. Furthermore, ESA's strong Copyleft license
> version does not include a compatibility clause (only the weak Copyleft
> version does), which is a better fit for the intended use cases.
>
> Best regards, Carsten
>
>
> On 02.02.2017 16:25, Patrice-Emmanuel Schmitz wrote:
> > Just a simple question: why is ESA forging its own licence, adding to
> > licence proliferation, and not considering the use of the EUPL, at least
> > regarding the copyleft versions?
> > Is it because the EUPL has no strong v/s weak copyleft versions?
> > Best regards,
> > Patrice
> >
> > 2017-01-20 15:26 GMT+01:00 Carsten Gerlach <cgerlach at tcilaw.de
> > <mailto:cgerlach at tcilaw.de>>:
> >
> > On 11.01.2017 13:50, jonathon wrote:
> >
> > > The key issue here is «that exercising rights granted by this
> License
> > > infringes third party's intellectual property rights».
> > >
> > > Astrolabe, Inc v Olson et al
> > > Case # 1:2011cv11725
> > > Filed 30 September 2011
> > > Massachusetts District Court, Boston.
> > >
> > > Until that lawsuit was filed, nobody dreamed that the _Time Zone
> and
> > > Daylight Saving Time Database_ could be a copyright violation.
> > > (For those people who don't recognize the database name, it was the
> > > official reference for time zones for the Internet in general, and
> Unix
> > > in specific.) (That court case was voluntarily dismissed by the
> > > plaintiff. The specific reason why was not publicly disclosed.)
> > >
> > > What makes that lawsuit even more surprising, is that copyright
> law in
> > > the United States neither recognizes "sweat of the brow" work
> product as
> > > being copyrightable, nor databases as being, in and of themselves,
> > > copyrightable.
> > >
> > > Call that an edge case. Call it a submarine case. Regardless, what
> would
> > > a firm who uses software with the ESA-PL supposed to do, if a key
> data
> > > source for it, was the subject of a similar lawsuit?
> >
> > If you positively know, or have sufficient reason to believe, that
> you
> > infringe third party rights by using a software, you will usually
> stop
> > such use. I think that is general prudent behavior, regardless of
> > specific license terms.
> >
> > However, I assume your issue is that in your example it is not the
> > software that is infringing, but the data processed with the software
> > (the lawsuit was basically filed for unauthorized reproduction of the
> > timezone database). Sec. 7 is not meant to apply to such cases - to
> data
> > is processed by the software - and I think it cannot be reasonably
> > construed to apply to such cases. In your example the infringement is
> > not caused by an exercise of rights granted by the license (e.g. by
> > running or copying the software), but by an exercise of rights in
> > respect of the data the software is processing.
> >
> > > Increasingly, with patents, the only way to know if usage is
> infringing,
> > > is for a court to rule on the matter. Paying the dangeld is always
> a
> > > losing proposition, but fighting requires more resources than the
> > > typical organization can afford to throw away.
> >
> > In such cases it might be sensible to stop the allegedly infringing
> use.
> > However, Sec. 7 does not mandate it unless the infringement is
> > positively known (e.g. has been confirmed by a court or the patent
> > holder has provided you with sufficient evidence etc.).
> >
> > >> For the European space community it is crucial that any licensee
> is
> > > obliged to inform the community of any third party claims he knows
> of.
> > >
> > > The ESA-PL does not mandate that known, potential third party
> > claims be
> > > included.
> > >
> > > I'll grant that "known" is both vague, and a very slippery slope,
> > >
> > >> Since the disclosure obligation only applies to patents related
> > to the software itself,
> > >
> > > But does it?
> > >
> > > «4.5 Each Contributor must identify all of its Patent Claims by
> > > providing at a minimum the patent number and identification and
> > contact
> > > information in a text file included with the Distribution titled
> > "LEGAL".»
> > >
> > > Much as I'd like to think that that clause meant _only_ the
> > patents that
> > > impact the specific software, an outfit like Prenda Law will claim
> > that
> > > it means the entire patent portfolio of the firm. Alternatively,
> since
> > > they are willing to bet the Dangeld, they will claim that it means
> the
> > > entire patent portfolio of the firm, plus the entire patent
> > portfolio of
> > > every employee of the firm, plus the entire patent portfolio of
> every
> > > consultant to the firm, regardless of their contributions to the
> > > software in question.
> > > Clause
> > >> it is not clear why the obligation is exceptionally unreasonable.
> > >
> > > It does not explicitly confine the scope of the patent list to
> patents
> > > that apply to the specific software that the license applies to.
> > >
> > >> The aim is to ensure maximum transparency regarding potential
> patent
> > > conflicts:
> > >
> > > Personally, I'd recommend that clause be modified/changed to:
> > >
> > > «4.5.1 Each Contributor must identify all _patents within its
> patent
> > > portfolio, that are utilized in this software,_ by providing, at a
> > > minimum the patent number and identification and contact
> > information in
> > > a text file included with the Distribution titled "LEGAL".
> > >
> > > 4.5.2 Patents that a contributor is aware of, that might be
> utilized
> > > within this software, must be listed, by providing, at a
> > > minimum the patent holder, the patent number, and identification
> and
> > > contact information for the patent holder, in a text file included
> > with
> > > the Distribution titled "LEGAL".»
> > >
> > > ##3
> > >
> > > I'll grant that there are a couple of issues with 4.5.2. The
> biggest
> > > being "what constitutes _is aware of_".
> >
> > "Patent Claims" are defined in Sec. 1 as "patent claim(s), owned
> [...]
> > by a Contributor which would be infringed by making use of the rights
> > granted under Sec. 2.1 [...]".
> >
> > I think that already clarifies the scope of Sec. 4.5, to the effect
> of
> > your proposed revision.
> >
> > >> if the original authors or contributors own patents that could
> prevent
> > > use of the software, such patents need to be disclosed.
> > >
> > > Clause 4.5 does not mandate disclosure of the existence of
> > > patents issues to third parties, that might affect the software,
> when
> > > the developers are aware of such patents.
> >
> > That's correct, but we felt that such a broad obligation would be too
> > onerous.
> >
> > Carsten
> > _______________________________________________
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> >
> >
> >
> >
> > --
> > Patrice-Emmanuel Schmitz
> > pe.schmitz at googlemail.com <mailto:pe.schmitz at googlemail.com>
> > tel. + 32 478 50 40 65
> >
> >
> > _______________________________________________
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> >
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--
Patrice-Emmanuel Schmitz
pe.schmitz at googlemail.com
tel. + 32 478 50 40 65
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