llvm dev - Oct 2015 - RFC: Improving license & patent issues in the LLVM community

>
>
> > Again, as stated before, both of these issues are covered by the
apache
> license.
> >
> > It has a built-in CLA that explicitly grants both copyright and patent
> > rights from contributors when they make contributions to the work.
>
> Huh? How can employee X of company Y contributing a patch grant any
> patent rights on behalf of Y?
>
>
Agent, actual, or apparent authority.
All valid.

Let's start with: In just about every country in the world, anyone
contributing on behalf of their company are exercising their employers
copyright (in most cases, even if they do it in their "spare time",
since
most people misunderstand what the law grants them there).

The license says:

"Licensor" shall mean the copyright owner or entity authorized by the
copyright owner that is granting the License.

It then uses licensor as the granter.

For example:

The copyright owner of work i do for Google is not owned by me, it's owned
Google. Thus, *Google* is the licensor, as defined by the license, even if
i am the one sending the work to llvm.

Both actual (They told me i could contribute), agent (I am also actually
authorized to contribute anyway), and apparent authority (Everyone else in
the community would normally believe i have authority to contribute, and
thus, there is apparent authority, regardless of whether Google said i
could contribute) would all bind Google when i contribute stuff.

Any one of them is sufficient.

Bottom line: If someone contributes to LLVM from a company, apparent
authority is going to bind that company.
This is why companies often try to carefully control who contributes things
to open source.
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On Wed, Oct 21, 2015 at 09:10:40AM -0700, Daniel Berlin
wrote:
> Let's start with: In just about every country in the world, anyone
> contributing on behalf of their company are exercising their employers
> copyright (in most cases, even if they do it in their "spare
time", since
> most people misunderstand what the law grants them there).
At least under German law, there is a clear separation between what I do
during work time and outside. Ignoring questions like anti competition
issues, my employer has no claims to what I do outside work time. That
leaves the part of "contributing on behalf of their company".
> Both actual (They told me i could contribute), agent (I am also actually
> authorized to contribute anyway), and apparent authority (Everyone else in
> the community would normally believe i have authority to contribute, and
> thus, there is apparent authority, regardless of whether Google said i
> could contribute) would all bind Google when i contribute stuff.
I don't think you will be able to convince a German court of that. I'm
not
a lawyer, so I can only base this on my experience conducting business
on behalf of my company. *Any* contract with binding and (practically)
irrevocable conditions so far required written proof of authorisation.
Purchasing physical goods is normally exempt, because it is revocable.
Prepayment practically removes the binding conditions (to pay) and
that's how many smaller immaterial goods are bought. But the general
opinion is that apparent authority to act on behalf of the company is
very limited. I'm not talking about falsifying proof of authority, but
having to show it in first place.

For the specific situation of contributions to LLVM, I believe two
different cases apply:
(1) The contribution is considered an unlicensed copy OR a confidental
data. I don't know if it is even possible to stop third parties from
using such material after publication, but it can certainly be handled
as "planned" publication with the company claiming damages from the
contributor. In practise, I would ask (as project) for proof of authority
for significant patches from contributors working for a company competing
in this area, but that's about it. That's only because the hassle in
case of problems is too big.
(2) The contribution touches on company patents. As written above,
making assumptions about non-trivial financial contracts is pretty much
invalid. I would certainly *expect* that noone below medium management
or the company law depatment is authorised to sign such a contract,
directly or indirectly. That's why I am a bit speechless that it would
be considered reasonable in the USA.

Joerg

On Thu, Oct 22, 2015 at 9:54 PM, Joerg Sonnenberger via llvm-dev <
llvm-dev at lists.llvm.org> wrote:
> On Wed, Oct 21, 2015 at 09:10:40AM -0700, Daniel Berlin wrote:
> > Let's start with: In just about every country in the world, anyone
> > contributing on behalf of their company are exercising their employers
> > copyright (in most cases, even if they do it in their "spare
time", since
> > most people misunderstand what the law grants them there).
>
> At least under German law, there is a clear separation between what I do
> during work time and outside. Ignoring questions like anti competition
> issues, my employer has no claims to what I do outside work time.
Again, this is a common misconception, or so multiple german employment
lawyers have told me.

> That
> leaves the part of "contributing on behalf of their company".
>
>
> > Both actual (They told me i could contribute), agent (I am also
actually
> > authorized to contribute anyway), and apparent authority (Everyone
else
> in
> > the community would normally believe i have authority to contribute,
and
> > thus, there is apparent authority, regardless of whether Google said i
> > could contribute) would all bind Google when i contribute stuff.
>
> I don't think you will be able to convince a German court of that.

and I do.
With all due respect, these issues have been vetted with actual legal
counsel, and they disagree with you.
Strongly.

When push comes to shove, i take their viewpoint over yours.
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