[License-review] Submission of the European Space Agency Public Licenses (ESA-PL) for approval
Carsten Gerlach
cgerlach at tcilaw.de
Thu Mar 2 16:35:26 UTC 2017
Yes, the ESA-PL Weak and Permissive are in our opinion compatible with
the NOSA 1.3/2.0. There should be no practical problems combining NOSA
and ESA-PL Weak or Permissive licensed code.
Carsten
On 10.02.2017 14:25, Tzeng, Nigel H. wrote:
> Until there is case law either way any conservative reading of the
> license by a corporate attorney will result in not wanting to use any
> strong copyleft license when there is corporate IP.
>
> If the ESA needs/wants weak copyleft and EUPL is strong then that's not
> grounds for rejection based on proliferation.
>
> My preference is that NASA and ESA have a common open source licensing
> scheme but that may be a bridge to far. Is NOSA1.3 and 2.0 compatible
> with ESA-PL in the opinion of the NASA and ESA lawyers on this list?
>
> If not then this would be sub-optimal...
>
>
> Sent with BlackBerry Work (www.blackberry.com)
>
> *From: *Patrice-Emmanuel Schmitz <pe.schmitz at googlemail.com
> <mailto:pe.schmitz at googlemail.com>>
> *Date: *Friday, Feb 10, 2017, 3:35 AM
> *To: *License submissions for OSI review <license-review at opensource.org
> <mailto:license-review at opensource.org>>
> *Subject: *Re: [License-review] Submission of the European Space Agency
> Public Licenses (ESA-PL) for approval
>
> 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
> <mailto: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>
> > <mailto: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>
> <mailto:pe.schmitz at googlemail.com <mailto:pe.schmitz at googlemail.com>>
> > tel. + 32 478 50 40 65 <tel:%2B%2032%20478%2050%2040%2065>
> >
> >
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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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