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You've ignored the meat of my comment, which is that CLAs are more about circumventing the project license than they are about demonstrating due diligence. But

You've ignored the meat of my comment, which is that CLAs are more about circumventing the project license than they are about demonstrating due diligence. But on that note... Even Microsoft's CLA has a backdoor that doesn't require the author of the code to sign the CLA. You can, for example, copy and paste some procedures from a compatibly licensed open source project and mark your submission as containing code from a third party source. (E.g., "What's <project>'s module resolution procedure? Ah, just copy the file defining that class into the source tree; it's already under MIT.") And as for "knowingly and intentionally" submitting code, Microsoft's CLA in particular exacerbates this rather than ameliorates it, because it broadens the definition of a submission to one that I'm sure would surprise almost every contributor who has actually signed the thing. Any code that you even discuss in a channel affiliated and run for a particular project by Microsoft constitutes a submission if you are the original author of that code, regardless of whether you actually submitted a patch for inclusion in the project, or even made any sign of interest in the development of that project whatsoever. (E.g., signing the CLA and submitting changes for project X means Microsoft gains control of your work around project Y if you link or distribute a personal project on the message board or mailing list for such project Y). So that argument is bunk. > The other risks that you're talking about are largely risks of fraud which make the situation messy. I'm at a loss for words. > An OSS project that just says, "We just take whatever code someone sends our way, while trusting blindly in what they say" Weird to even use this characterization, since that's an accurate description of exactly the sorts of CLA processes we're discussing. > The CLA translates the situation into, "And the person submitted the code committed outright fraud and deceived the project owner", which will not necessarily be easy to establish merely from a commit I have a sort of rule of thumb that I think most readers follow whether they realize it or not. It goes like this, "The first person to use the word FUD loses." Even so, I'm having trouble seeing this comment coming off as anything but that. It comes off as nothing more than casting incredibly dubious aspersions. Can you point to an instance where such a thing has actually come up in litigation? Alternatively, cite an instance where even just a credible threat of such a thing has come up. Both Mozilla and Linux each have long and storied histories; both are poster children for what large, successful open source projects can achieve; and both have corporations with serious money backing them. They somehow have managed to get along fine for decades without anything like that posing a realistic problem for either project, or even worthy of a footnote in their history, for that matter. For a more recent example, I'll point out again that Apple deliberately chose a CLA-free contribution process for Swift, which was initiated as an open source project only months ago. Do you think Apple has reason to believe that the threat you mention is a credible one but that their project (or maybe just some characteristic of the company) has some inherent detail that renders them immune to it in this case only? CLAs, in the form that we typically see them, are bullshit, and almost every defense of them fares even worse. Once again, CLAs exist for one reason, which is to grant the recipient org rights beyond those they'd ordinarily only receive through the license (that they chose!), e.g., so they can redistribute it under alternative terms, should they decide to do that for whatever reason. This would be a more productive discussion if you'd actually focus on that, rather than invoking unverifiable claims about advice from phantom counsel and the threat of submarine suits.

Pyxl101 11y ago
Before we talk about this further, can I ask: are you a lawyer, or have you discussed these topics with a lawyer? I'm not a lawyer, but I have discussed these topics with (variously) corporate lawyers and an Apache board member, and the impression that I've gotten from all of them is that this space is very nuanced and that one must be cautious. The way that the law will reason about issues does not always match the way that engineers will think. For example, I was astonished that a court ruled in Oracle's favor in Oracle v. Google, in a case where Google largely just implemented a documented, public Oracle API. The whole SCO Linux controvery also seemed like a major problem for Linux at the time: https://en.wikipedia.org/wiki/SCO/Linux_controversies https://en.wikipedia.org/wiki/SCO/Linux_controversies - it seemed to have a chilling effect that turned a lot of companies off to open source. The court case seemed to take several years to litigate, just to establish that Novell and not the SCO Group owned the copyright to the code. Why did that take so long to establish? The submission governance and CLA were put in place by some companies specifically to mitigate the threat of such a risk applying to them later. As Wikipedia explains regarding the rationale of CLAs: https://en.wikipedia.org/wiki/Contributor_License_Agreement#Rationale https://en.wikipedia.org/wiki/Contributor_License_Agreement#... "Contributor Licence Agreements (CLAs) can be used to enable vendors to easily pursue legal resolution in the case of copyright disputes, or to relicense products from which contributions have been received from third parties. The purpose of a CLA is to ensure that the guardian of a project's outputs has the necessary ownership or grants of rights over all contributions to allow them to distribute under the chosen licence." Emphasis is: "easily pursue legal resolution in the case of copyright disputes" (e.g., SCO Linux) A lot of your argument seems to boil down to that because some people don't think there is a risk, that no one is right to rationally recognize a risk. I can't really comment on Apple's motivations for not requiring a CLA in Swift, just like I can't really comment on Apple's motivations for masterminding a criminal conspiracy to fix the price of ebooks (for which they were recently fined $450m). I can guess but I don't know for sure. I think reasonable people could disagree about the risks involved in CLAs. It's not always the case that lawyers agree. As I pointed out originally, we don't have case law for all of this space. Insofar as you're implying that open source projects have been run without legal problems, I think you're wrong. Things like the SCO Linux controversy and the Oracle v. Google lawsuit about Java APIs make me feel like the industry as a whole is on less stable ground than everyone seems to think. Given that there are real cases where such problems have been specific issues, and given that many qualified people (not just me) explain this as their rationale, I don't think it's unjustified FUD. Can you provide a court case where one company sued another about an open source contribution, and the court clearly and convincingly ruled (in a short period of time): "You chose to contribute to open source, so live with it and stop wasting everyone's time". I haven't seen that. I've seen rather the opposite. The court will only muddle through what's happened with years of litigation at exorbitant cost. I've provided some examples of where this actually happened and has been messy, so if you wish to assert that this is all simple and CLA's aren't beneficial, then I'd like to ask you to provide a citation of a court case where such an issue was trivially resolved. See also Jacobsen v. Katzer for case history. "The case is noted for its contentiousness, the parties filing 405 motions and other pleadings with the trial court, and two appeals to the Ninth Circuit Court of Appeals." (Wikipedia) The case was only resolved in 2010, and since it was settled out of court, I'm not clear whether it establishes binding precedent. As I understand it, the summary judgment left it open whether damages were owed. This is another example where litigation took years. Are you also aware that the FSF employs copyright assignment to ensure that they can enforce licenses? https://www.fsf.org/bulletin/2014/spring/copyright-assignment-at-the-fsf https://www.fsf.org/bulletin/2014/spring/copyright-assignmen... > In order to make sure that all of our copyrights can meet the recordkeeping and other requirements of registration, and in order to be able to enforce the GPL most effectively, FSF requires that each author of code incorporated in FSF projects provide a copyright assignment, and, where appropriate, a disclaimer of any work-for-hire ownership claims by the programmer's employer CLAs are all about copyright assignment. So in conclusion, I don't find your arguments convincing, in part because you seem to be overlooking or glossing over case history. From my perspective, there is a long and storied history of people actually running into problems in this area, and companies engaging in malicious lawsuits that are without merit specifically to harm competitors, and so on. There are examples of well-informed companies like the FSF taking steps specifically to mitigate these risks. For these reasons I understand why a company would want to protect itself from apparent and legally-advised risks with a CLA, and in general rely on more explicit contractual relationships rather than an open license agreed to without a clear meeting of minds.

Pyxl101 11y ago

Before we talk about this further, can I ask: are you a lawyer, or have you discussed these topics with a lawyer? I'm not a lawyer, but I have discussed these topics with (variously) corporate lawyers and an Apache board member, and the impression that I've gotten from all of them is that this space is very nuanced and that one must be cautious. The way that the law will reason about issues does not always match the way that engineers will think. For example, I was astonished that a court ruled in Oracle's favor in Oracle v. Google, in a case where Google largely just implemented a documented, public Oracle API. The whole SCO Linux controvery also seemed like a major problem for Linux at the time: https://en.wikipedia.org/wiki/SCO/Linux_controversies https://en.wikipedia.org/wiki/SCO/Linux_controversies - it seemed to have a chilling effect that turned a lot of companies off to open source. The court case seemed to take several years to litigate, just to establish that Novell and not the SCO Group owned the copyright to the code. Why did that take so long to establish? The submission governance and CLA were put in place by some companies specifically to mitigate the threat of such a risk applying to them later. As Wikipedia explains regarding the rationale of CLAs: https://en.wikipedia.org/wiki/Contributor_License_Agreement#Rationale https://en.wikipedia.org/wiki/Contributor_License_Agreement#... "Contributor Licence Agreements (CLAs) can be used to enable vendors to easily pursue legal resolution in the case of copyright disputes, or to relicense products from which contributions have been received from third parties. The purpose of a CLA is to ensure that the guardian of a project's outputs has the necessary ownership or grants of rights over all contributions to allow them to distribute under the chosen licence." Emphasis is: "easily pursue legal resolution in the case of copyright disputes" (e.g., SCO Linux) A lot of your argument seems to boil down to that because some people don't think there is a risk, that no one is right to rationally recognize a risk. I can't really comment on Apple's motivations for not requiring a CLA in Swift, just like I can't really comment on Apple's motivations for masterminding a criminal conspiracy to fix the price of ebooks (for which they were recently fined $450m). I can guess but I don't know for sure. I think reasonable people could disagree about the risks involved in CLAs. It's not always the case that lawyers agree. As I pointed out originally, we don't have case law for all of this space. Insofar as you're implying that open source projects have been run without legal problems, I think you're wrong. Things like the SCO Linux controversy and the Oracle v. Google lawsuit about Java APIs make me feel like the industry as a whole is on less stable ground than everyone seems to think. Given that there are real cases where such problems have been specific issues, and given that many qualified people (not just me) explain this as their rationale, I don't think it's unjustified FUD. Can you provide a court case where one company sued another about an open source contribution, and the court clearly and convincingly ruled (in a short period of time): "You chose to contribute to open source, so live with it and stop wasting everyone's time". I haven't seen that. I've seen rather the opposite. The court will only muddle through what's happened with years of litigation at exorbitant cost. I've provided some examples of where this actually happened and has been messy, so if you wish to assert that this is all simple and CLA's aren't beneficial, then I'd like to ask you to provide a citation of a court case where such an issue was trivially resolved. See also Jacobsen v. Katzer for case history. "The case is noted for its contentiousness, the parties filing 405 motions and other pleadings with the trial court, and two appeals to the Ninth Circuit Court of Appeals." (Wikipedia) The case was only resolved in 2010, and since it was settled out of court, I'm not clear whether it establishes binding precedent. As I understand it, the summary judgment left it open whether damages were owed. This is another example where litigation took years. Are you also aware that the FSF employs copyright assignment to ensure that they can enforce licenses? https://www.fsf.org/bulletin/2014/spring/copyright-assignment-at-the-fsf https://www.fsf.org/bulletin/2014/spring/copyright-assignmen... > In order to make sure that all of our copyrights can meet the recordkeeping and other requirements of registration, and in order to be able to enforce the GPL most effectively, FSF requires that each author of code incorporated in FSF projects provide a copyright assignment, and, where appropriate, a disclaimer of any work-for-hire ownership claims by the programmer's employer CLAs are all about copyright assignment. So in conclusion, I don't find your arguments convincing, in part because you seem to be overlooking or glossing over case history. From my perspective, there is a long and storied history of people actually running into problems in this area, and companies engaging in malicious lawsuits that are without merit specifically to harm competitors, and so on. There are examples of well-informed companies like the FSF taking steps specifically to mitigate these risks. For these reasons I understand why a company would want to protect itself from apparent and legally-advised risks with a CLA, and in general rely on more explicit contractual relationships rather than an open license agreed to without a clear meeting of minds.