[License-review] Submission of the European Space Agency Public Licenses (ESA-PL) for approval

Carsten Gerlach cgerlach at tcilaw.de
Thu Feb 9 16:16:24 UTC 2017


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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