[CAVO] FW: [License-review] [Was: Submission of OSET Public License for Approval] -- National Security and Public Policy (3.5B and 4)

[Lawrence Rosen]

-----Original Message-----
From: Gervase Markham [mailto:gerv at mozilla.org] 
Sent: Tuesday, September 15, 2015 8:09 AM
To: License submissions for OSI review <license-review at opensource.org>
Subject: Re: [License-review] [Was: Submission of OSET Public License for Approval] -- National Security and Public Policy (3.5B and 4)

On 15/09/15 03:34, Meeker, Heather J. wrote:
> We do take the point that the general nature of these terms is 
> potentially ambiguous.  However, even though national security and 
> public policy interests are named generally here and not called out as 
> particular statutes or regulations, the licensee would still 
> ultimately be responsible for proof (presumably in the context of a 
> defense against an enforcement claim by the copyright owner) for what 
> legitimately constitutes national security or public policy interests.

It seems to me unlikely that an individual would prevail against a government if the point at issue was "is thing X a matter of national security?".

> Also please note that the OSET license actually does say that these 
> exceptions must be written:

...except if the government concerned says that they are unable to comply with the provision requiring written justification for reasons of national security or necessity of public interest?

If you add a clause which says "certain people can opt out of any clause of this license for reasons X or Y", it doesn't help to point to other clauses to suggest that they in some way constrain this right. :-)

It does seem a little bit like you have written a license with a clause that says "governments can come up with reasons not to obey this license", and the intended use of the license is for software which will generally be used by governments. One wonders if the public domain would not be a simpler way of achieving the same end? ;-)


Anyway, I am glad to say that it's not my job to approve or deny OSI certification for this licence. Having pointed out this issue, I will leave it to TPTB to work out whether it's a problem or not.

Gerv
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