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Re: Legal Issues (Was: QA Framework Last Call -- request for review)

From: Joseph Reagle <reagle@w3.org>
Date: Thu, 1 May 2003 12:58:53 -0400
To: Patrick Curran <Patrick.Curran@sun.com>
Cc: Lofton Henderson <lofton@rockynet.com>, www-qa-wg@w3.org
Message-Id: <200305011258.53567.reagle@w3.org>

On Wednesday 05 February 2003 21:32, Patrick Curran wrote:
> OK - I just spoke to one of our legal counsels, and he had this to say:

Hi Patrick, my recollection of the state of our discussion is as follows. 
I've put three questions to MIT counsel for consideration and potential 
adoption in a new version of the W3C Document or Software License:

1. Need the Document license *explicitly* permit "compilation", as in 
bringing together different distinct works? The question is whether the 
ability to create a compilation is governed by the right "to reproduce" or 
to "prepare derivative works." [1,17 USC 106].  It has always been the 
intent of the W3C to permit compilations of our documents; one can find 
many cases of just that. Of the licenses that I've examined that permit 
this behavior, some do (and some don't) have explicit provisions for 
granting "merger" or "incorporation" into collective works.

[1] http://www4.law.cornell.edu/uscode/17/106.html

2. Should we generalize the term "document" to "work" in the W3C Document 
License. I advocate we do this as we've already done it in the W3C Software 

3. Should the Software or Document license *explicitly* permit "public 
performance and display". As explained more completely below it is not my 
understanding that this is an essential grant for running software. 
Clearly, all OSI approved licenses intend their software to be run, but 
only half grant this right.

I consider each of these issues to be a substantive issue meritting 
improvement, but not a show stopper to anyone wishing to create a 
compilation or execute software today under the W3C Licenses.

So Patrick, are you stating that you would require clarity on these issues 
before you would assent to recommending the use of the document or software 
license for test materials? I can redouble my efforts to get the legal 
folks' attention, and possibly issue new versions of those licenses that 
address the issues above though on the "use" issue I discuss below, I 
wouldn't not expect to see that term appear again in our license.

> The Document License does not grant the kind of "use" rights that we
> would need in order to make effective use of a test suite, particularly
> one that required the addition of  a test harness, and he would
> therefore advise against us adopting tests that were covered by such a
> license.

A possible point of confusion here is "use". Copyright law does not give us 
the exclusive right to "use" a work (i.e., run software), or govern its 
"use" beyond the enumerated rights of reproduction, derivation, 
distribution, and public performance and display. My understanding is that 
it's just best not to even use that term though some licenses confusingly 
grant "use" in addition to these enumerated rights, seemingly indicating 
that somehow something else is (first reserved) and subsequently granted. 
This term has been removed from the W3C Software License because of this 
confusion though it is obviously not our intent to remove the ability to 
execute software. Simply, we never had the right to prohibit anyone from 
doing that in the first place, and consequently don't need to make a grant.

> His particular concerns are that the Document License
> explicitly does *not* grant the rights to "perform and display" that you
> reference below - it grants only the rights to copy and distribute. He
> therefore interprets this as prohibiting us, for example, from
> incorporating tests covered by this license into a larger test suite, or
> from adding a test harness or additional documentation before
> redistributing. Even if the rights to "perform and display" were added
> to this license, it's unclear that these terms extend to the execution
> of software or the utilization of data files.

W3C's intent, W3C historical practice, licensing (the OSI licenses I've 
examined) conventions, and some interpretations indicate that the W3C does 
not prohibit compilations nor the execution of software. If this is not 
sufficient for your legal folks and it presents a short-term "show stopper" 
I will redouble my efforts to (1) resolve these issues with our counsel or 
(2) facilitate a discussion at that level if there continues to be 
Received on Thursday, 1 May 2003 12:59:47 UTC

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