[Asterisk-Users] RE: Business Edition

[Kevin Walsh]

Kevin P. Fleming [kpfleming at digium.com] wrote:
> Kevin Walsh wrote:
> > The perpetual agreement grants "the owner" a "non-cancellable right
> > to use changes and/or enhancements" made to the Asterisk codebase "as
> > [the] owner sees fit."  As any Asterisk fork would, of course, be based
> > upon existing Asterisk code, "the owner" would have the automatic right
> > to take any code they wanted and backport it into the Asterisk Binary
> > Edition - as long as the contributor to the fork had previously signed
> > a perpetual "disclaimer" at some point in the past.
> >
> Nice work clipping out only the words you wanted to use there! Let's try
> this again, with the actual text from the disclaimer:
> 
> (b) The rights made in Para. 1(a) of this Agreement applies to all past
> and future contributions of Contributer that constitute changes and
> enhancements to the Program. 
> 
> 2.  Contributer shall report to Owner all changes and/or enhancements to
> the Program which are covered by this Agreement, and (to the extent known
> to Contributer) any outstanding rights, or claims of rights, of any
> person, that might be adverse to the rights of Contributer or Owner.
> 
> In other words, the _only_ code that the disclaimer covers is that which
> the Contributer directly identifies to Digium to be covered by the
> disclaimer. In absolutely no way does this disclaimer give Digium the
> right to appropriate other changes the Contributer makes to the covered
> programs without their knowledge and permission.
>
Firstly, there are no "in other words" about it.  That is a legal
document.  If "other words" are meant then they should be stated as
such - in plain English.  Secondly, paragraph 2 is distinct from
paragraph 1, in which paragraph 2 insists that the contributor to a
fork to also report changes back to "the owner".  If the owner doesn't
report changes then they could find themselves in trouble over a
breach of the agreement, and "the owner" can still simply take the
changes anyway, as allowed for in paragraphs 1(a) and 1(b).

> 
> In addition, even the most liberal interpretation of these clauses still
> includes the words "Contributer" and "contribution", which clearly means
> that the entity signing the disclaimer has sole discretion which of
> their changes are covered and which are not.
>
If that's the intention then it should be made clear in the document.
The agreement, as it stands today, contradicts your statement and I
believe it has been very carefully worded to either hide its true
intentions or to allow future loopholes in favour of "the owner".

By the way, if anyone wants to see the full text of the dangerously
perpetual "disclaimer", they can find it here:

    http://www.digium.com/disclaimer.txt

Read it very carefully, or have a lawyer advise you as to its content
and implications.

-- 
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