Re: [epl-discuss] Next Round of Proposed Revisions to the EPL

[Till Jaeger <till.jaeger@xxxxxxxxx>]

Hi Mike,

It think there is a misunderstanding. Please find my additional comments below:

Am 20.09.2016 um 17:22 schrieb Mike Milinkovich:
> Till,
> 
> Thanks for taking the time to look at this. Your feedback is appreciated.
> Responses are in-lined below.
> 
> On 2016-09-13 01:53 PM, Till Jaeger wrote:
>> 2.
>> Whereas the changes in sec. 1 are fine, the new wording in sec. 2 could have
>> some unwanted side effects. The grant of rights should be as broad as
>> possible (as with all FOSS licenses). Using the term "Modified Work" instead
>> of "derivative work" could be interpreted in a way that alterations are not
>> allowed which are no "modifications" but create a "derivative work". Since
>> it is unclear in many (all?) jurisdictions what is considered a "derivative
>> work" we cannot assume that the current definition of "Modified Work" does
>> cover all alterations needing permission from the copyright holder.
>> Therefore, I suggest the following text: "prepare derivative works,
>> including but not limited to Modified Works,"
> 
> I am pretty sure that we do not want to do this. The main reason is that
> some lawyers believe that subclassing creates a derivative work, and we want
> to explicitly exclude subclassing from the definition. Your proposed
> construction could make that ambiguous.

I understand your point. However, there seems to be the following problem:

1.
The definition of "Modified Work" does not include subclassing and other
forms of linking. The reason is that you want to exclude such scenarios from
the definition of "Contribution" and, thus, from the Copyleft of the EPL. I
have no objections in this regard.

2.
Section 2 ("Grant of Rights") provides the right to "prepare Modified
Works". Since the definition of "Modified Work" excludes subclassing, for
example, the question comes up whether or not subclassing is allowed at all.

You indicated that some lawyers believe that subclassing creates a
derivative work. Creating a derivative works needs a permission of the
copyright owner. Thus, the current wording is unclear about whether or not
creating derivative works (which are not "Modified Works") is permitted.

3.
Thus, I recommend to change the wording in Section 2 but not the definition
of "Contribution" and/or "Modified Work". This would make clear that on the
one hand any creation of a derivative work is allowed but, on the other
hand, not all of them are considered "Contributions" triggering the copyleft
of the EPL.

>> 3.
>> You might consider to clarify the meaning of sec. 3:
>> "a) it complies with the terms and conditions of this Agreement;"
>>
>> I never understood what means "comply" in this provision. Does the own
>> license agreement contain all license conditions of the EPL?
>>
>> Which license obligations have to be fulfiled in the case that the
>> Executable Code is distributed under the EPL (instead of an own license
>> agreement)? It would be great to facilitate license compliance by providing
>> a clear and simple list of all license obligations.
> 
> We believe that the "it" in that instance is actually the Contributor, not
> their agreement. To be clearer about that, perhaps we should change 3a) and
> b) to read:
> 
>     a) the Contributor complies with the terms and conditions of this
>     Agreement; and
>     b) the Contributor’s license agreement: ...

This would be very helpful.

>> 4.
>> It might be useful to check the EPL for full license compatibility with the
>> Apache-2.0. I have concerns about compatibility if someone wants to copy
>> code from an Apache-2.0 program into EPL code (e.g. with regard to the
>> "NOTICE" provision of Apache-2.0).
> 
> I am not sure why you want to single out the ALv2 for this type of analysis?
> To be clear, we've never claimed that you can cut-and-paste ALv2 source into
> EPL-licensed code.

Ok, I see. Just an idea....

I guess that changing/clarifying the scope of the copyleft reduces the
relevance of this question.

Best regards,

Till

--
Dr. Till Jaeger
Certified Copyright and Media Law Attorney


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