OWF 1.0 Agreements for Board Consideration

[David Rudin]

OWF Board,

 

The Legal Drafting Committee is pleased to present the proposed OWF 1.0 Agreements for your approval.  These agreements have been in development since the public release of the 0.9 versions and represent a significant milestone.  These drafts are result of a great deal of hard work from the OWF Drafting Committee, and we’d like to thank everyone for their contributions.

 

In addition to the attached agreements, we have prepared a draft FAQ that is available at http://bit.ly/dIUSRC.  This FAQ is still being developed and will be a non-official OWF document.  It is intended to provide background regarding the agreements for users of the agreements.

 

There are four versions of the agreements for your consideration.

 

·         Contributor License Agreement 1.0 – Copyright and Patent Grants

·         Contributor License Agreement 1.0 – Copyright-Only Grant

·         OWFa 1.0 – Copyright and Patent Grants

·         OWFa 1.0 – Patent-Only Grant

 

These 1.0 agreements include fairly significant changes to the way patents are addressed as compared to the previously approved 0.9 versions.  The 0.9 versions adopted a fairly standard "Necessary Claims" approach that is common with most formal standards organizations to defining what patent claims were covered the patent commitment.  Under this traditional approach, only patent claims that cannot be avoided would be covered by the licensing commitment, the rationale being that if you can avoid infringing a patent claim, you can avoid the need to get a license.  Importantly, the determination of whether a patent claim is actually covered generally requires a formal patent analysis, since whether there are other alternatives tends to be a legal rather than a technical matter.

 

The 1.0 agreements take a different approach to patents.  The 1.0 agreement attempt to focus the consideration of what patent claims are actually covered under the agreements to the specification itself.  Provided the specification is detailed enough, the OWF 1.0 agreements would make those patent claims that are infringed when implementing that specification available, even if there were ways to avoid the particular patent.    The goal is to help provide a patent litigation-free zone around the specification by focusing on the specification itself, not whether the patent can be avoided by using other methods.  Importantly, this is also intended to promote interoperability by encouraging specification drafters to create detailed specifications.  Additional background is available in the FAQ.

 

As part of the drafting process, the Drafting Committee held a public review period and subsequently considered all comments received.  The attached documents represent the Drafting Committee’s consensus position and no objections were raised by any Drafting Committee members.

 

We look forward to your consideration and would be happy to answer any questions you may have.

 

Thank you,

 

Larry Rosen & David Rudin

OWF Legal Drafting Committee Co-Chairs

[DeWitt Clinton]

Thank you, David, Larry, and the committee for your (seemingly limitless!) hard work and patience drafting these documents.  I encourage the board to take the time review them carefully, and please do raise any questions or concerns to David and the committee now, such that we may move forward expediently.

-DeWitt

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[Gabe Wachob]

Thanks for the long hard work and the really useful responses to all the legitimate feedback you were given over the length of the process.

Will be reviewing this very soon. 

   -Gabe

[Gabe Wachob]

Hi Larry & David-

  I have two quick technical questions:

1) In the patent non-assert (section 3.1 in the OWF Agreement & CLA for (c) and patent), the language about "Permitted Use of any other specifications" is slightly (in my head) ambiguous. Is the promise of non-assert based Permitted Use defined in the licens of that *other* specification, or is this permitted use language intended to now (retrospectively) apply to the external spec (as defined in the OWFa/CLA). In other words, does this OWFa/CLA present a separate and distinct license/non-assert where some other license/non-assert applies for the referenced specification? 

2) In the Copyright-only CLA, the terms Bound Entities and Control are defined but never used (as far as I can tell). This may be a nit, but seems like they should be removed if not used?

THANKS for these documents guys, its a ton more understandable now.

   -Gabe 

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Gabe Wachob / gwa...@wachob.com \ http://beatslacker.com

[David Rudin]

Gabe - First, thanks for your thorough review of the documents.  You've raised two really good questions, and I've included my responses inline below.  Also, if you'd like, I'd be happy to find a time to talk if you'd like to discuss in greater detail.

Thanks again, 

David

On Mon, Feb 21, 2011 at 4:53 PM, Gabe Wachob <gwa...@wachob.com> wrote:

Hi Larry & David-

  I have two quick technical questions:

1) In the patent non-assert (section 3.1 in the OWF Agreement & CLA for (c) and patent), the language about "Permitted Use of any other specifications" is slightly (in my head) ambiguous. Is the promise of non-assert based Permitted Use defined in the licens of that *other* specification, or is this permitted use language intended to now (retrospectively) apply to the external spec (as defined in the OWFa/CLA). In other words, does this OWFa/CLA present a separate and distinct license/non-assert where some other license/non-assert applies for the referenced specification? 

[DR:  The language you're referring to ("This promise also applies to your Permitted Uses of any other specifications incorporating all required portions of the Specification") is intended to allow someone to take the covered Specification, create a derivative work, and still have patent coverage for the underlying Specification (excluding anything new added to it) so long as all require portions are maintained. In other words, lets assume we have a specification with 10 sections, where sections 1-5 are required and 6-10 are optional. If someone were to take sections 1-5, but replace sections 6-10 with new work, the OWF commitments would carry on to sections 1-5 in the new specification, but not the new sections 6-10. As another example, let's say someone took the same OWF covered specification, but this time took sections 1-4 (omitting the required section 5) and then added new sections 5-10. In this case, the OWF patent grants would NOT carry over to sections 1-4 since a required section was omitted, thus breaking interoperability.  

This is not intended to cover any other external specification, and those specifications would be covered by their own legal terms.

With those examples in mind, here's how it's intended to work using the nested legal definitions in the documents. The patent promise says:

"This promise also applies to your Permitted Uses of any other specifications incorporating all required portions of the Specification."

Permitted Uses, in turn, is defined as:

"Permitted Uses.  “Permitted Uses” means making, using, selling, offering for sale, importing or distributing any implementation of the Specification 1) only to the extent it implements the Specification and 2) so long as all required portions of the Specification are implemented. Permitted Uses do not extend to any portion of an implementation that is not included in the Specification.

Under the Permitted Uses definition, the grant is limited to both 1) implementations of the OWF covered Specification itself and 2) the requirement that all required portions are maintained. Since Permitted Uses has these constraints, the OWF commitments would not carry over to anything new added to the Specification or cover anything that wasn't included in the underlying covered Specification. ]

 

2) In the Copyright-only CLA, the terms Bound Entities and Control are defined but never used (as far as I can tell). This may be a nit, but seems like they should be removed if not used?

[DR:   Admittedly, the concept of the Bound Entity is probably less important in the Copyright-only CLA since, at least in general, the copyright risks associated with a specification are less than the patent risks.  In the Copyright-only CLA, the term Bound Entity comes into play in the definition of "I, Me, or My" and in the signature block itself.  The idea is that since we have one universal CLA for corporate and individual users rather than a separate corporate CLA and individual CLA (like Apache does), the signature block is what determines who is making the commitment.  In the case of the Copyright-only CLA, if someone signs as a Bound Entity, that Bound Entity, and any entities it Controls, are subject to the terms of the agreement.  Once someone signs as a Bound Entity, the Bound Entity essentially becomes the "I, Me, or My" referenced in the body of the agreement.]

THANKS for these documents guys, its a ton more understandable now.

[DR:  Thanks!  I'm really happy with how these documents have turned out, all the hard work from the drafting committee, and the feedback we've received from the community.]