[CAVO] The "source code" availability issue

Wed Sep 2 21:52:54 UTC 2015

David RR Webber wrote:
> This is certainly an area that GPL3 has not specifically covered in detail - its assumed that the code is made available - but this has often been an issue - particularly in regard to the latest code - rather than some prior code set. And then also - the code can be made available - but use and verification of it can be made opaque by omission of components or instructions that are needed to actually replicate deployed build packages.

I'm not aware of any situation where the source code has not been made available – at least upon request – for GPLv3 software. "Open source" is supposed to mean that "source code is published somewhere."

However there have been disputes about whether certain other software is a "derivative work" and thus questioning whether its source code must be disclosed. That's a legal issue that is not at all unique to GPLv3. There is a lawsuit in Germany about this right now.

Certainly the government general[ly] assumes they "own" whatever is provided or touched during fulfillment of a project - unless otherwise clearly noted.

They better not assume they "own" it. Even local government lawyers are not that presumptuous about software licenses.  :-)

/Larry

From: David RR Webber (XML) [mailto:david at drrw.info] 
Sent: Wednesday, September 2, 2015 8:06 AM
To: CAVO <cavo at opensource.org>
Subject: Re: [CAVO] Fwd: [License-review] Submission of OSET Public License for Approval

Brent,

I share the concern of "what is really going on?" here - the stated needs are not exactly linked to clear business drivers and requirements and scenarios - there's a lot of legal contingency and "what iffing" covering here and maybes. 

However - this is one interesting area:

Section 5.3 of the 2.0 license now requires that a licensee who does
not abide by the terms of the license must make the Covered Software
available in Source Code Form on a publicly available computer net
work for a period of no less than three (3) years

This is certainly an area that GPL3 has not specifically covered in detail - its assumed that the code is made available - but this has often been an issue - particularly in regard to the latest code - rather than some prior code set. And then also - the code can be made available - but use and verification of it can be made opaque by omission of components or instructions that are needed to actually replicate deployed build packages.

There are definitely issues with government contracts - but whether those are actually needed to be covered in the license is not clear. Certainly the government general assumes they "own" whatever is provided or touched during fufillment of a project - unless otherwise clearly noted.

David

-------- Original Message --------
Subject: Re: [CAVO] Fwd: [License-review] Submission of OSET Public
License for Approval
From: Brent Turner <turnerbrentm at gmail.com <mailto:turnerbrentm at gmail.com> >
Date: Wed, September 02, 2015 3:47 am
To: CAVO <cavo at opensource.org <mailto:cavo at opensource.org> >

I'll punt this one to the big brains...but Meeker sounds like she is justifying a solution to a non-existent problem..  i.e . why would a new license be needed other than GPL.  ?  When asked previous who in government craved a special OSET created license.. the silence was notable. 

BT

On Tue, Sep 1, 2015 at 9:33 PM, Lawrence Rosen <lrosen at rosenlaw.com <mailto:lrosen at rosenlaw.com> > wrote:

FYI. Larry

Sent from my Samsung Galaxy Tab®|PRO

-------- Original message --------
From: "Meeker, Heather J." 
Date:09/01/2015 3:18 PM (GMT-08:00) 
To: license-review at opensource.org <mailto:license-review at opensource.org>  
Cc: Gregory Miller ,John Sebes ,"Meeker, Heather J." ,christine at osetfoundation.org <mailto:christine at osetfoundation.org>  
Subject: [License-review] Submission of OSET Public License for Approval 

1 September 2015

Members of the OSI License Review Community                              

VIA EMAIL to license-review at opensource.org <mailto:license-review at opensource.org> 

CC:         Christine M. Santoro, Esq., OSET Foundation General Counsel

                John Sebes, CTO, OSET Foundation / TrustTheVote Project

RE:          Application for Consideration of the OSET Foundation OPL for OSD Compliance Approval

Greetings, Members of the OSI License Review Community:

The Open Source Election Technology Foundation (OSET) is pleased to submit the OSET Public License (OPL) for OSI license review and for discussion with the larger community.   We believe the OPL falls into the special purpose category.  We coordinated the drafting of this license, with review and input from other lawyers both within and outside of the Open Source Election Technology Foundation (OSET).  

OSET’s tax-exempt non-profit mission is to facilitate the development of technology to deliver free, and fair elections within an accountable and verifiable process.  The public servants tasked with running our elections are poised to embrace the benefits of open source software licensing, but they also must work within the procurement rules of their profession.  While we hesitated to create a new license, we have done so to meet the needs of our user community.  Existing open source licenses do not deliver what our community needs, and we have written the OPL to meet these needs, and bridge the gap between open source licensing and many county and state government technology procurement regulations.

Our goal is for the OPL to facilitate the implementation of verifiable, accurate, secure, and transparent elections system technology that are not only federal- and state- certified, but also demonstrably worthy of the public’s trust.  We believe this can only be accomplished using open source software. 

Our stakeholder community—elections administrators and officials—are very receptive to acquiring open source software-based election and voting systems provided the software (and related support and services) can be legally acquired through their procurement process.  A primary ingredient of their procurement process is terms and conditions of software licensing that meet their regulatory requirements.

While governments already often acquire open source technology on an ad hoc basis under existing licenses, they face more, and different, hurdles acquiring open source election systems.  Open source software that is merely part of a larger IT system is usually covered by two documents—the open source license, and an overarching (and often superseding) procurement agreement that fits with the applicable regulations.  Where an agency is acquiring an entire open source technology system—especially technology to be used in public elections and subject to competitive bidding—procurement regulations need to be handled properly within the four corners of the open source license.   

Accordingly, OSET has based its license on the Mozilla Public License version 2.0 (“MPL”) with the addition of six modifications: 

1.            Governing Law

2.            Venue

3.            Government Rights

4.            March-in Rights

5.            Sovereign immunity 

6.            Deployment

These modifications address necessary requirements for the provisioning of election software to county and state government agencies and their contractors.  Election technology procurement takes place primarily at the local (state, county, and jurisdictional) level; however, we would like the license to work at the federal level as well.

Also, we are mindful of the benefit of compatibility with other licenses.  Like MPL 2.0, the OPL is compatible with GPL and LGPL 3.0.  So, all software issued under OPL can be used in GPL and LGPL projects that have adopted the version 3 licenses. Therefore, any project that does not require the added provisions of OSET is free to elect not to use them, and to use GPL, or LGPL instead.  We think this is the best way to address our constituents’ needs while limiting the compatibility problems of a new license. 

We have posted the text of the license (in plain text, PDF, and HTML), our rationale document, and an FAQ, as support for our submission.  http://www.osetfoundation.org/public-license/.

Thank you for your consideration and we look forward to the discussion!

Sincerely,

Heather Meeker

O’Melveny & Myers

Counsel to OSET

+1 650.473.2635 <tel:%2B1%20650.473.2635> 

&

Gregory Miller

Co-Executive Director, Chief Development Officer, OSET

+1 503.703.5150 <tel:%2B1%20503.703.5150> 

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