[cabfpub] CPs, CPSes and copyright

Gervase Markham gerv at mozilla.org
Wed May 27 08:39:14 UTC 2015

Hi Rick,

Thanks for the feedback - very helpful.

On 26/05/15 20:05, Rick Andrews wrote:
> I ran this by my legal team, and here's the feedback I received:
> - Intellectual property rights, like copyright rights, may only be granted
> in writing. Therefore an "implied license" would not apply to a document
> like a CA's CPS.

I guess what I meant was that it's unlikely that a CA would submit its
documents to us as part of an inclusion request, and then sue us over
using them in ways it could forsee when it submitted them. I'm no
lawyer, but I'd call it a form of promissory estoppel. It would
certainly be PR suicide.

> - There is a legal doctrine known as "fair use" that we feel adequately
> covers the public comment process that Mozilla wishes to preserve. "Fair
> use" allows for someone to excerpt parts of the document in order to draw
> attention to it.

The legal doctrine of copyright "fair use" is a US concept. While
Mozilla currently processes CA applications in the US, there is no rule
which says that will be the case for ever. (Although we have no plans to
change.) Other jurisdictions have a different approach which may well
not cover this use case, either for Mozilla or for other people who are
doing evaluations of CAs with a view to determining their
trustworthiness. EU law, for example, has 20+ possible exception
categories, but all of them bar one are optional in the legislation of
member states.

We don't think that relying on the patchwork of exceptions and
limitations to copyright worldwide is sufficient to give people the
necessary leeway.

> - We are concerned about derivative works. Many CAs spend a lot of time and
> effort to craft these documents, and would not want a new CA to simply copy
> the documents and claim them as their own. While that might further
> strengthen the CA system, I feel that it's more likely that a new CA will
> copy the documents without understanding what they mean, and without
> adopting the practices described in them.

That is a reasonable point. Arguments like this are a reason that we
think that CAs should have the option of a "no derivatives" licence.


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