Open Stack

I think that additional context would be useful. As counsel to the OpenStack Foundation as well as being on the Legal Committee of the Apache Software Foundation, I think that it is important to note that the ICLA (and CCLA) were developed as part of the ecosystem of the Apache licensing system from the beginning. I reviewed over 200 emails from the time of the drafting of the Apache Software License version 2 (ASLv2) and it is quite clear that the drafters assumed that CLAs would be used.  CLAs (both ICLA and CCLA) are still used by the Apache Software Foundation for their projects. As Richard noted, I believe that the ASLv2 as a "contribution license" has significant problems because the manner in which it was drafted assumed that CLAs would be employed and the language of the ASLv2.  At the simplest level, the use of ASLv2 as a contribution license means that the user of the ASLv2 licensed code does not get a direct patent license (which he would get under the ICLA and CCLA).  

I have great respect for Richard and his opinions on many legal issues in FOSS.  And I agree that the current implementation of the CLA process could be better. However,  the wiki which he references is not a simply an advocacy piece, but it is wrong in a number of respects. First, as a matter of context, the wiki was first brought to the attention of the Board during a meeting with the Technical Committee without any prior review by anyone at the Foundation.  This approach is very different from the OpenStack tradition of community and transparency.  Consequently, some of the facts were simply wrong: the statements about the "famous" Kevin Fox case are incorrect at best and misleading at worst. Since I was the only person to speak with counsel for PNNL,  it would have been useful to speak with me prior to making any statements about this "problem".  Second, the wiki ignores the requirement that contributions by individuals working for corporations require an individual with "corporate authority" to approve the contract to make the  contribution (whether as a CCLA or DCO).  The wiki recommends the use of the DCO: however, the DCO originated in the Linux ecosystem which is based on the GPLv2, a "single tier" license, and thus is quite different from the Apache ecosystem which provides (and assumes) the right to sublicense . The DCO (unlike the ICL/CCLA structure) is not clear about the requirement to get appropriate corporate authority. Most developers are not sufficiently senior in the corporation to have that authority. The Linux community has solved this problem from a cultural point of view, by providing for express delegation of the necessary corporate authority to its developers, but the OpenStack community is much newer and does not have that tradition.  Third, even if the DCO was signed by the appropriate corporate authority, the use of a DCO for corporate contributions would not provide the user with a direct patent license (as provided under the CCLA). Consequently contributions by individuals working for corporations (which are estimated to be more than 80% of the contributions to the Foundation) need a CCLA to provide the community with the rights that they expect. 

I agree with Richard that the Foundation has "not leveraged' the different nature of the ICLA grant. Moreover, the Foundation is unlikely to do so, because it has committed in its bylaws that it will " distribute the software in the OpenStack Technical Committee Approved Release under the Apache License 2.0 unless changed as provided in Section 9.1."  Section 9.1 requires the highest level of approval to change this provision, including (i) a majority of the Board of Directors, (ii) two-thirds of the Gold Members, (iii) two-thirds of the Platinum Members, and (iv) a majority of the Individual Members voting (but only if at least 10% of the Individual Members vote at an annual or special meeting). I think that any change would be very unlikely.



 
-----Original Message-----
From: Richard Fontana [mailto:rfontana at redhat.com] 
Sent: Wednesday, May 06, 2015 10:08 PM
To: Jeremy Stanley
Cc: legal-discuss at lists.openstack.org
Subject: Re: [legal-discuss] StackForge and IP.

On Wed, May 06, 2015 at 09:43:37PM +0000, Jeremy Stanley wrote:
> On 2015-05-06 17:21:09 -0400 (-0400), Richard Fontana wrote:
> Thanks again--I had indeed forgotten there was some additional 
> explanation of the differences in that article. It's still vague 
> insofar as it states that the OpenStack ICLA is structured in a way so 
> as to not place "certain conditions" on the OpenStack Foundation (as 
> compared to a basic grant of the contribution to them under the Apache 
> License) but doesn't indicate what those omitted conditions are.

Apache License 2.0 section 4, and I suppose in theory section 9.

You could argue that the inclusion or omission of such conditions is not very significant, but that raises the question of why you need a lopsided two-license structure. (Mark Radcliffe has argued that the Apache License 2.0 text assumes the use of CLA licenses flowing to a foundation entity which then grants sublicenses downstream under the Apache License. I don't agree with this but I won't start that debate again here.)

> It also mentions additional "legal burdens" on OpenStack contributors 
> without enumerating them. Ultimately I worry that pointing someone 
> there will raise more questions than it answers. I could guess at 
> them, based on a lay reading of the agreement, but perhaps that's the 
> intent of the article after all.

It's fairly straightforward; see paragraphs 4, 5, 7 and 8 of the OpenStack ICLA.

> Probably my greatest confusion is whether these differences over the 
> Apache License have actually been leveraged to date, or are so far 
> merely unexercised. The way in which the OpenStack Foundation 
> "releases" OpenStack software hasn't (yet!) seemed contradictory to 
> typical methods used by other software projects with similar licenses 
> and no CLA.

Right; by itself this is not a particularly strong argument against the use of the CLAs in OpenStack, and is not really central to the objections to it. That's actually why the wiki article didn't go into those details, frankly, with respect to my contributions to it; I thought it would detract from the main argument.

I don't think the OpenStack Foundation has 'leveraged' the different nature of the CLA license grant, except possibly in re-licensing of documentation from the Apache License to CC BY.

RF

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