[Harmony-Drafting] Fwd: [Harmony-Review] CLA vs. software license terms

[Allison Randal]

Another one for attention of lawyers in the group.

-------- Original Message --------
Subject: [Harmony-Review] CLA vs. software license terms
Date: Sun, 17 Apr 2011 07:46:35 -0400
From: Dan Scott <dan at coffeecode.net>
Reply-To: Review Harmony Contributor Agreements 
<harmony-review at lists.harmonyagreements.org>
To: Review Harmony Contributor Agreements 
<harmony-review at lists.harmonyagreements.org>

Hi:

Looking at the individual CLA
(http://www.harmonyagreements.org/docs/ha-cla-i.html):

Article 2.1(b) states:

"""
To the maximum extent permitted by the relevant law, You grant to Us a
perpetual, worldwide, non-exclusive, transferable, royalty-free,
irrevocable license under the Copyrights covering the Contribution, with
the right to sublicense such rights through multiple tiers of
sublicensees, to reproduce, modify, display, perform and distribute the
Contribution as part of the Work; provided that this license is
conditioned upon compliance with Section 2.1(d).
"""

The "perpetual" and "irrevocable" parts would suggest that the terms of
the software license wouldn't apply. The clause "provided that this
license is conditioned upon compliance with Section 2.1(d)" modifies the
first clause: I'm not familiar with the use of the verb "conditioned" in
a legal context, but it seems to suggest that the terms of the software
license(s) itself then trump the perpetual / irrevocable parts of the
first clause in 2.1(b). So, disaster averted, I hope? Perhaps legal
experts could suggest whether this is typical verbiage for conditional
clauses and works in the way that we expect it to.

Given that the software license itself for the contribution itself
defines licensing terms, what is the advantage to adding another layer
of licensing in this document? There seems to be plenty of potential for
conflict between the terms of the CLA and the software licenses that
could be avoided if licensing details were handled by the software
licenses.

The main advantage that I see in a contributor agreement is the explicit
assertion that the contributor has the right to make the contributions
they're making (3.b, 3.c, 3.d) - legal hygiene - but on that front the
Linux DCO probably does a better job. I was hoping that the Harmony CA
would effectively provide a standing DCO (sign once, so that
contributors to the project understand that contributed code must be
their own or theirs to contribute) and then let the software license
under which the code is contributed dictate the terms of that code's
use. This is factor #2 in the Harmony Overview FAQ
(http://www.harmonyagreements.org/overview.html) but given the relative
length of section 3 in the CLA where we deal with rights to make
contributions, it looks like the primary goal of the Harmony CAs are to
deal with factor #3 in the Harmony Overview FAQ: enabling a project
to license and relicense contributed code with maximum flexibility.
(Perhaps I've answered my own question in the previous paragraph.)
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