<div dir="ltr"><div dir="ltr"><br></div><br><div class="gmail_quote"><div dir="ltr" class="gmail_attr">On Wed, May 1, 2019 at 5:18 PM Pamela Chestek <<a href="mailto:pamela@chesteklegal.com">pamela@chesteklegal.com</a>> wrote:<br></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex">
<div bgcolor="#FFFFFF">Yes, that's fine. There still is a problem with 2.2.2 and the
wording "with the exception in 2.4." Why aren't 2.2.1 and 2.2.2
parallel language?<br></div></blockquote><div><br></div><div>Now I see your point here, I just missed that. They now use parallel language, "Subject to the exception in section 2.4...." <br></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex"><div bgcolor="#FFFFFF">
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<br>
Section 2.3: It says "You must give the same permission
received under<br>
this License to any Recipient...." However, Section 7.2 says
the license<br>
is not sublicensable, so the Licensee doesn't have authority
to grant<br>
permissions at all. The clause doesn't seem to have an
effect and<br>
therefore only creates confusion.<br>
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<div>This is intended to reflect a similar concept to the
GPL's "no further restrictions" clause. I am open to ways to
improve this to make it clearer.<br>
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Isn't it as simple as "cannot impose any additional restrictions"?<br></div></blockquote><div><br></div><div>Not quite. The GPLv3 has a list of allowable restrictions (trademark, etc), and you can't add additional restrictions above those enumerated. For the CAL, however, I hoped to avoid adding a laundry list. <br></div><div><br></div><div>Removed that portion from 2.3, and focused on 7.2: "<span style="font-size:12pt;font-family:Calibri,sans-serif;color:rgb(0,0,0);background-color:transparent;font-weight:400;font-style:normal;font-variant:normal;text-decoration:none;vertical-align:baseline;white-space:pre-wrap" id="gmail-docs-internal-guid-f3e88f80-7fff-bbda-f332-3e1117da5954">This License is not sublicensable. Each time You provide the Work or a Modified Work to a Recipient, the Recipient automatically receives a license under the terms described in this License. <b>You may not impose any further reservations, conditions, or other provisions on any Recipients’ exercise of the permissions granted herein."</b> </span></div><div><br></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex"><div bgcolor="#FFFFFF"><blockquote type="cite"><div dir="ltr"><div class="gmail_quote"><div><br>
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<div>Thanks, capitalization fixed. With regard to the meaning,
this is an anti-DMCA clause. See my email to Henrik on this
list identifying the parallel GPLv3 clause.<br>
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"See email" isn't particularly helpful when the thread is so long
and I am looking for an email from you, of which there are many. A
link to the pipermail link would be more helpful.<br></div></blockquote><div><br></div><div>Sorry, just trying to be succint.</div><div><br></div><div bgcolor="#FFFFFF"><div class="gmail_quote"><div>GPLv3, Section 3:
No covered work shall be deemed part of an effective technological
measure under any applicable law...</div><div><br></div><div>CAL
2.3(a): You may not, by means of cryptographic controls, technological
protection measures, or any other method, limit a third party from
independently Processing User Data in which they have a Lawful Interest
</div><div><br></div><div>GPLv3, Section 3:
When you convey a covered work, you waive any legal power to forbid
circumvention of technological measures to the extent such circumvention
is effected by exercising rights under this License with respect to
the covered work
</div><div><br></div><div>CAL, 2.3(d): You waive any legal power to forbid circumvention of technical protection measures that include use of the Work
</div><div> </div><div>GPLv3, Section 3: You disclaim any intention to limit operation or
modification of the work as a means of enforcing, against the work's
users, your or third parties' legal rights to forbid circumvention of
technological measures.</div><div><br></div><div>CAL: 2.3(e): You waive
any claim that the capabilities of the work were limited or modified as a
means of enforcing the legal rights of third parties against Recipients
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You have defined "Public Performance" as using the Software
to take any<br>
action that implicates the right of performance or public
display under<br>
copyright law, and include as one use case of making an
interface<br>
available. The license grant is for this full scope.
However, your<br>
definition of "Modified Work" and "Recipient" refer only to
"Public[ly]<br>
Perform[ance/ing] an interface." This creates ambiguity
about the scope<br>
of the right for Modified Work and that Recipients have.<br></blockquote><div><br></div>
<div>If you look at the header to 2.3, it encompasses all ways
in which a Licensee can communicate the Work to a Recipient.<br>
</div>
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Not following at all.</div><div bgcolor="#FFFFFF"><br></div><div bgcolor="#FFFFFF">I am not quite understanding your question, then. The header to section 2 states:</div><div bgcolor="#FFFFFF"><br></div><div bgcolor="#FFFFFF">"<span style="font-size:12pt;font-family:Calibri,sans-serif;color:rgb(0,0,0);background-color:transparent;font-weight:400;font-style:normal;font-variant:normal;text-decoration:none;vertical-align:baseline;white-space:pre-wrap">Any distribution, Public Performance, sale, or offer for sale of the Work to a Recipient is subject to the following conditions..."</span></div><div bgcolor="#FFFFFF"><br></div><div bgcolor="#FFFFFF">These words are used to imply distribution (under copyright), public performance (under copyright, or alternative, as defined), and distribution to a third party, including SaaS/network interaction (which is considered to be encompassed under sale/offer under patent law). These specific terms were used because these were the ones that I saw as implicating some kind of transfer, in some respect, of the work covered by the License.<br></div><div bgcolor="#FFFFFF">
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Section 7.1.1: I don't understand why a reference to GDPR is
required;<br>
it strikes me as a "you must comply with all applicable law"<br>
requirement. And why the GDPR and not any other or future
laws? If a<br>
statement is needed that the requirements the law impose
will override<br>
the license requirements, you can say that more generally.<br>
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<div>This clause is not about complying with the GDPR. Rather,
it is the reverse: It is a limitation saying that if you
comply with those specific subsets of the GDPR, that is also
good enough to count as compliance with CAL 2.3(b). It is
intended to streamline CAL compliance by hooking into an
already-existing enforcement regime.</div>
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I do not misunderstand this section but I am apparently not
explaining my concern clearly enough. It is facially non-compliant
with OSD 6. You have given special permission to someone who has to
comply with the GDPR that relieves them of duties under CAL. Others
who may have similar conflicts do not get this special permission.
Imagine that Australia passes exactly the same law as the GDPR
except it's called the ADPR. Those who have to comply with the ADPR
do not have the special forgiveness for compliance that those who
are complying with the GDPR have. The Australians therefore may not
be able to use the CAL software because they cannot comply with it
and the ADPR at the same time, but those who must comply with the
GDPR have an additional permission so they can comply with both. The
solution is to make this section non-specific to a particular legal
regime.</div><div bgcolor="#FFFFFF"><br></div><div bgcolor="#FFFFFF">Hmm. Maybe I will just delete 7.1.1. This was meant to be an interpretive guide only, and to reduce the possible scope of what a court might think is necessary to comply. But it doesn't affect the rights/responsibilities at all. All that said, it seems to be causing more confusion than it helps. <br></div><div bgcolor="#FFFFFF"><br></div><div bgcolor="#FFFFFF">Specifically with regard to your hypothetical, though, anyone who provided the same data in the way described would be complying with the CAL. They may also be complying with another law (GDPR, ADPR, or $XDPR). But this license doesn't condition anything on compliance with those other laws. It only says that the performances required under the CAL and those specific subsections of the GPDR should be interpreted consistently.<br></div><div bgcolor="#FFFFFF"><br></div>Thanks,<br></div><div class="gmail_quote">Van<br></div></div>