NASA requests help finding gov't use of standard OSS licenses.

[Karl Fogel]

VanL <van.lindberg at gmail.com> writes:
>On 5/1/2011 8:37 PM, Karl Fogel wrote:
>> Scott Goodwin, CIO of NASA's Space Operations Mission Directorate, is
>> looking for examples of federal agencies releasing open source software
>> under standard OSS licenses -- like BSD, Apache, GNU GPL, etc.
>>
>> Part of the purpose is to evaluate the future of NASA's custom open
>> source license, the NASA Open Source Agreement (NOSA) [1].  As you can
>> see from Scott's message below [2], one possibility is that existing OSS
>> licenses could serve all of NASA's purposes, and that NOSA would no
>> longer be necessary.
>
>Pardon the history lesson, but I am do not understand how traditional
>licenses would address the original NOSA use case - specifically,
>providing a non-copyright basis for keeping government-written code in
>public.
>
>With reference to source code written by government contractors,
>traditional copyright (and thus traditional licenses) apply. For
>purely government-written code, however, copyright doesn't apply; it
>is public domain by statute.
>
>The NOSA was designed to emulate the behavior of common open source
>licenses by declaring the government as an intended third party
>beneficiaries to future developments of the code, in theory giving
>them the right to pursue legal action to keep the code open. It
>performs this under contract law principles, though, not copyright
>principles.

Thanks for the history lesson.

Hmm, so how does NOSA get enforced on someone who didn't "agree" to it?
That is, if the code itself is in the public domain, and I get a copy of
it, then how are NOSA's terms binding on me?

One could make the argument that someone who originally downloads the
code from NASA's servers is bound by the terms of any agreement that
they clicked "OK" on to get physical access to the code.  But then two
questions arise:

  1) The next party to whom the code is distributed did not click "OK",
     and therefore could treat the code as public domain, right?  Yet if
     NOSA places more restrictions on the original downloader than on
     downstream recipients, that's clearly a problem.

  2) Something about using a contract to get around the plain intent of
     the "government works are public domain" rule sticks in the craw :-).
     Public domain is public domain; one shouldn't have to file a FOIA
     request to get the code.  Public domain is open source too, anyway.  

Now, if what NASA wants is the ability to copyleft, then that's an
interesting proposition, but it's a specialized case of simply wanting
to open source the code, which they can do without NOSA or any other
license/contract.

The more I look at NOSA, the more confusing it gets.  I'd love your take
on the above two points, Van.

-Karl