Re: [xmlvm-users] Clarifications on the Linking Exception

[Gergely K. <ger...@ma...>]

Hi,

Please find my comments below. Since the emails are already too long, I will
only include the relevant parts.

2010/3/17 Arno Puder <ar...@pu...>

> [...]
> >
> > 2. Unclear legal status of the project
> > When we are signing the CLA, we are signing the rights to "XMLVM". This
> > issue has been brought up last year on this list. Right now it is not
> > clear, who is XMLVM? Is there a commercial entity? Is it the 3 Core Team
> > members? Who will "own" the code, that is contributed? Who will grant
> > the commercial licenses?
> > The core team members work at large software companies / US universities.
> > It is not clear if these entities have any legal basis of "taking
> > XMLVM", and saying that the previous "linking exceptions" are invalid,
> > and starts to sue the users of XMLVM. This all depends on the work
> > contracts of the core team members, and also the relevant US and EU laws.
> >
> > I know that this seems like a slim chance right now, but stranger things
> > have happened, especially when there is money involved.
>
> By signing the CLA electronically, you only give us the right to use
> your patch. You still retain the copyright of your work. It is correct
> that XMLVM is not a legal entity and when I refer to XMLVM, I mean the
> core team. Would it help you if XMLVM incorporated in California? If I
> remember correctly, you are located in Eastern Europe. We cannot create
> companies all over the world to accommodate each national law.
>
No, Hungary is in Central Europe, and also an EU member state.

No one asked you to create a company in every country. What I suggested,
that it would clear up the legal stand of the XMLVM project, if there would
be a single legal entity who owns the project. Since you plan to
commercialize the project, this legal entity should probably be a for-profit
company. International business relationships between companies are pretty
common, our company is working with multiple companies all over the world.

The problem is, that currently the XMLVM Core Team who own the project, are
3 independent persons, who are possibly not even located in the same
country. This makes it pretty hard to enter into a business relationship
with you, like to buy a linking exception. Who is signing the contracts? All
3 of you? Who is going to create the invoice? Where do we transfer the
money?
Also, the contributors should receive written proof that they received a
linking exception.



>
> A developer on SourceForge must choose an Open Source license. The
> license spells out the rules, without the developer having to register a
> company. In that sense we do the same, except that we add the linking
> exception in return for a contribution (which, btw, is also not a new
> idea. Look on Wikipedia). Its a cheap man's commercial license, but I'd
> rather do that than charge $50.000 for a proper commercial license so we
> can pay the legal bills.
>
I think you have cleared up the confusion with the linking exception pretty
well, so it is an acceptable solution. It would make sense to create a
detailed official FAQ page about this.


> > 3. Absence of a real commercial license
> [...]
>
If you build a product for a client, the client pays you for that
> service but they are *not* using XMLVM. So, they do not need to apply
> for a linking exception. I acknowledge that some clients require you to
> deliver source code of your work and the ability to re-compile the
> application (which means that they need XMLVM). If you use a commercial
> tool to build the application for your client (lets say, a modeling
> tool), your client will also need to buy a commercial license for this
> modeling tool if they want to re-compile the application themselves, right?
>
OK, I think with the other mails, the meaning of the linking exception is
pretty much cleared up. However, with a commercial tool, our client would be
able to buy the tool from the creator of the tool. Right now with XMLVM the
situation is unclear:
- How much does it cost for a company? Is it even possible to buy it for
money?
- Who do we need to contact? All 3 Core Team members at the same time?

I am trying to be practical here: We would recommend to buy XMLVM licenses
for our customers, but right now, we can't do that, because there is no one
to buy it from.

[...]

>
>
> You have invested weeks, perhaps months into the development in XMLVM.
> We have invested years (I personally since 2002). There is no asymmetry
> between the core team and contributors. We cannot sell XMLVM because you
> still have the copyright of your work. With the linking exception you
> can do the same as we do: offer services to your clients.


This is an excerpt from the Contributor License Agreement:

> Grant of Copyright License. Subject to the terms and conditions of this
> Agreement, You hereby grant to XMLVM and to recipients of software
> distributed by XMLVM a perpetual, worldwide, non-exclusive, no-charge,
> royalty-free, irrevocable copyright license to reproduce, prepare derivative
> works of, publicly display, publicly perform, sublicense, and distribute
> Your Contributions and such derivative works.


In my interpretation this means that you can do whatever you want with the
contributed code, which includes re-licensing and selling it. If this were
not true, then you would not be able to provide linking exceptions for the
code that contributors wrote.

> - Keep the current dual licensing scheme for the compiler. As far as I
> > know the code generated by the compiler is still GPL - so you need a
> > commercial license for using it in commercial project. I am not a lawyer
> > -- if this is not the case, then you might consider changing the
> > compiler license accordingly.
>
>
> no. this is not correct. Look at gcc. gcc is GPLed and you can use it
> for commercial applications. The only way to do dual licensing is by
> having a restrictive license on the libraries.
>
> Just to clarify: This means that if no part of the compatibility library
(and of course the Android library) of XMLVM is used in a project, then the
resulting software is not subject to the GPL, and it can be redistributed
under any license without a linking exception.

Is this the correct interpretation?

 [...]

>
> I think what this whole thing boils down to is that you feel that your
> contribution is not valued enough. I do believe that we can address this
> with the length of the linking exception (I really don't want to spend
>
> [...]
Thank you for acknowledging the size of the contributions, I think that part
is covered, with your later mails.

However, what I meant here is not just about that. We (as a company) would
like to keep our investments safe, the same way you do.

Any contribution that we (or anybody else) make will have 2 parts:
- original work: something that was created independently of the existing
parts of XMLVM, e.g. a new class or method in a class.
- derived work: something that was created based on existing code in XMLVM,
e.g. when a method is changed to fix a bug, or the xsl is changed...etc.

I think the solution is that we contribute our original works as separate
patches, clearly marked as that. These are the parts that we are also
allowed to distribute under any license, according to the XMLVM CLA, which
we signed.

This method of submission will also mean much smaller patches, which will
help the review process substantially. I would recommend that you encourage
all contributions separated this way, since this is a sure way of avoiding
monster patches.

Do you agree with this approach?
I am already working on splitting up the patch that is sitting in the review
system to make it easier to review.

May I ask for the consent from each member of the Core Team about the GPL
interpretation and the "patch submission policy"?

I would very much like to be done with this legal stuff, and get back to
coding and improving XMLVM. :)

Best Regards,
Gergely

-- 
Kis Gergely
MattaKis Consulting
Email: ger...@ma...
Web: http://www.mattakis.com
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