Archive for April, 2014

Error in Apache license boilerplate

It says:

Licensed under the Apache License, Version 2.0 (the "License");
you may not use this file except in compliance with the License.

As a putative statement of fact, the second part is false. Noncompliant use is sometimes ruled out by copyright law, but is only categorically ruled out if you have done something, like sign a contract, to relinquish your rights. Using or copying a file does not in itself constitute signing a contract. There are ways you can legally use the file that are not in compliance with the license, such as:

  1. If an exception to copyright restrictions applies, such as fair use
  2. If the period of copyright protection has ended
  3. If you obtain a different license from the rightsholder that grants rights beyond what the Apache License grants (dual licensing)

A license is not a contract. It can only grant an exception to a background prohibition (think hunting license, drivers license); it can’t have the effect of establishing a prohibition that wasn’t there already. Where there is no prohibition, as in the case of fair use, a license has nothing to say. Unconditional “may not” language is not appropriate in contexts like the above.

Granted that this sentence is not in the license text itself, but rather in the boilerplate. But it is misleading nonetheless.

Frequently I see people confusing license and contract. The confusion is natural and I didn’t get it until I worked at Creative Commons. One source of confusion is that the two are often linked. When entering into a contract, you might agree to do something like pay money or give up rights, in exchange for which you might be granted a license. Libraries, for example, sometimes give up rights like text mining (which is not restricted by copyright law) in exchange for access to journals. But the relinquishing of rights is a term of the contract, not the license. And you’re only bound by a contract (the contract only exists) if you agree to it.

There is another problem with the Apache statement, which is that copyright law only restricts copying (performance, translation, etc.), not all “use”. It doesn’t make sense to license use when use isn’t prohibited.


Categories: Uncategorized