[License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal
Kevin Fleming
kevin+osi at kpfleming.us
Wed Aug 3 13:06:30 UTC 2016
Maybe I'm just being naive here, but if the USG does not hold copyright on
this code (in the US), what ownership rights does it have? As far as I know
there are no other relevant intellectual property rights involved here,
since it's clearly not a trade secret, and patents are not involved. There
could be trademarks involved as has been mentioned in other parts of the
thread, but otherwise it's difficult to understand what the USG would be
licensing to anyone, since the USG has no ownership. What would be the
basis for the USG bringing suit against someone for violating the license,
if that were to occur?
On Wed, Aug 3, 2016 at 8:31 AM, Karan, Cem F CIV USARMY RDECOM ARL (US) <
cem.f.karan.civ at mail.mil> wrote:
> Marten, I don't have any case law regarding this, but the ARL Legal team
> does hold that the US can assert copyright outside of the US.
>
> As for the part about being void, I spend quite a bit of time talking
> things over with the lawyers in the ARL Legal office. Here is what they
> said:
>
> 1) A license is a contract. The USG can enter into and enforce contracts.
> Thus, the USG can enforce a license by going to court, etc. It can also
> defend itself in court based on a license (e.g., to defend against claims
> of warranty, etc.).
>
> 2) Copyright is an entirely separate issue. Copyright can be used as
> another mechanism to enforce the terms of a contract, but copyright is not
> a contract.
>
> 3) The USG does not permit itself to have copyright within the US on USG
> generated works. Thus, a contract (or license) whose provisions are only
> enforceable by copyright assertions falls apart for the USG.
>
> Taken together, if the USG used something like the Apache 2.0 license on
> work that it generated that didn't have copyright, then the license would
> be null and void. However, if the license was a contract, and relied on
> more than just copyright protections, then the license would still be valid
> and enforceable. Unless someone up our chain of command states that it's
> OK to use one of the standard licenses, we need something that works for
> us. This is not just to protect the USG from liability claims, or patent
> infringement claims; it's also to protect anyone that uses USG-furnished
> code. I don't have any case law showing this has happened with
> USG-furnished code, but I know similar things have happened in the private
> sector, e.g. Rambus (https://en.wikipedia.org/wiki/Rambus#Lawsuits).
>
> Thanks,
> Cem Karan
>
> > -----Original Message-----
> > From: License-discuss [mailto:license-discuss-bounces at opensource.org]
> On Behalf Of Maarten Zeinstra
> > Sent: Monday, August 01, 2016 4:21 AM
> > To: license-discuss at opensource.org
> > Cc: lrosen at rosenlaw.com
> > Subject: Re: [License-discuss] [Non-DoD Source] Re: US Army Research
> Laboratory Open Source License proposal
> >
> > All active links contained in this email were disabled. Please verify
> the identity of the sender, and confirm the authenticity of all links
> > contained within the message prior to copying and pasting the address to
> a Web browser.
> >
> >
> > ________________________________
> >
> >
> >
> > Hi Cem,
> >
> > I believe this was already answered John Cowan, I was proven wrong. US
> does assert copyright for government works in other
> > jurisdictions. Wikipedia provides these sources:
> >
> > “The prohibition on copyright protection for United States Government
> works is not intended to have any effect on protection of these
> > works abroad. Works of the governments of most other countries are
> copyrighted. There are no valid policy reasons for denying such
> > protection to United States Government works in foreign countries, or
> for precluding the Government from making licenses for the use of
> > its works abroad.” - House Report No. 94-1476
> >
> > and
> >
> > “3.1.7 Does the Government have copyright protection in U.S. Government
> works in other countries?
> > Yes, the copyright exclusion for works of the U.S. Government is not
> intended to have any impact on protection of these works abroad (S.
> > REP. NO. 473, 94th Cong., 2d Sess. 56 (1976)). Therefore, the U.S.
> Government may obtain protection in other countries depending on the
> > treatment of government works by the national copyright law of the
> particular country. Copyright is sometimes asserted by U.S.
> > Government agencies outside the United States.” Caution-
> http://www.cendi.gov/publications/04-8copyright.html#317 < Caution-
> > http://www.cendi.gov/publications/04-8copyright.html#317 >
> >
> > However I am not sure how this would work with the Berne Convention,
> especially article 7(8) which states: ‘[..] the term shall be
> > governed by the legislation of the country where protection is claimed;
> however, unless the legislation of that country otherwise provides,
> > the term shall not exceed the term fixed in the country of origin of the
> work.’ If the U.S. term of protection is 0 years, than other countries
> > would also apply 0 years.
> >
> > @John, @Cem: do you have some case law about this? I would like to
> verify this with my academic network in the U.S. If not, any license
> > you want to apply on this material is immediately void (which is only a
> theoretical problem imo).
> >
> > Regards,
> >
> > Maarten
> >
> > --
> > Kennisland | Caution-www.kl.nl < Caution-http://www.kl.nl > | t
> +31205756720 | m +31643053919 | @mzeinstra
> >
> >
> > On 29 Jul 2016, at 19:37, Karan, Cem F CIV USARMY RDECOM ARL (US) <
> cem.f.karan.civ at mail.mil < Caution-
> > mailto:cem.f.karan.civ at mail.mil > > wrote:
> >
> > I'm sorry for getting back late to this, the lawyer I'm working
> with was called away for a bit and couldn't reply.
> >
> > I asked specifically about this case; in our lawyer's opinion, the
> US Government does have copyright in foreign (to the US)
> > countries. He says that there is case law where the US has asserted
> this, but he is checking to see if he can find case law regarding this to
> > definitively answer the question.
> >
> > Thanks,
> > Cem Karan
> >
> >
> >
> > -----Original Message-----
> > From: License-discuss [Caution-mailto:
> license-discuss-bounces at opensource.org < Caution-mailto:license-discuss-
> > bounces at opensource.org > ] On Behalf Of Maarten Zeinstra
> > Sent: Sunday, July 24, 2016 7:49 AM
> > To: license-discuss at opensource.org < Caution-mailto:
> license-discuss at opensource.org >
> > Cc: lrosen at rosenlaw.com < Caution-mailto:
> lrosen at rosenlaw.com >
> > Subject: [Non-DoD Source] Re: [License-discuss] US Army
> Research Laboratory Open Source License proposal
> >
> > All active links contained in this email were disabled.
> Please verify the identity of the sender, and confirm the authenticity
> > of all links
> > contained within the message prior to copying and pasting
> the address to a Web browser.
> >
> >
> > ________________________________
> >
> >
> >
> > Hi,
> >
> > Yes I am suggesting that if the country of origin of the
> work does not assign copyright to the work then no copyright is
> > assigned world-
> > wide. My reasoning is that there is no entity to assign
> that copyright to.
> >
> > An example in a different field might support my argument.
> >
> > In the Netherlands we automatically assign (not transfer,
> which is important here) any IP rights of the employee to the
> > employer if works
> > are created within the duties of the employee. That means
> that the employer is the rights holder. This rights holder is
> > consequently also
> > recognised as the rights holder in other jurisdictions.
> Who might, given a similar situation in their own jurisdiction,
> > normally assign the
> > right to the employee.
> >
> > Now if there is no rights holder to begin with (the U.S.
> waives it rights on government produced works as I understand,
> > the Netherlands
> > government does the same), then no foreign rights can be
> assigned as well. Hence the work must be in the public domain
> > world wide.
> >
> > I have more experience with Creative Commons-licenses than
> with Open Source license, but in CC licenses the license
> > exists for the
> > duration of the right. I assume all Open Source licenses
> are basically the same in this regard. In that sense it does not
> > matter which license
> > is applied as the license is immediately void, since there
> is no underlying right to license.
> >
> > Finally, in the past I have advised the dutch government
> to adopt CC0 to make the public domain status of their works
> > clear. They have
> > adopted this since ~2011 on their main site:
> Caution-Caution-https://www.government.nl/copyright < caution-Caution-
> > https://www.government.nl/copyright > < Caution-
> > Caution-https://www.government.nl/copyright < Caution-
> https://www.government.nl/copyright > > (english version). I
> > advise the US army does something similar as well.
> >
> > Regards,
> >
> > Maarten Zeinstra
> >
> > --
> > Kennisland | Caution-Caution-www.kl.nl < Caution-
> http://caution-Caution-www.kl.nl/ > < Caution-Caution-
> > http://www.kl.nl < caution-Caution-http://www.kl.nl > > | t
> +31205756720 | m +31643053919 | @mzeinstra
> >
> >
> > On 24 Jul 2016, at 08:26, Philippe Ombredanne <
> pombredanne at nexb.com < Caution-mailto:pombredanne at nexb.com >
> > < Caution-Caution-mailto:pombredanne at nexb.com < Caution-mailto:
> pombredanne at nexb.com > > > wrote:
> >
> > On Fri, Jul 22, 2016 at 11:23 PM, Lawrence Rosen <
> lrosen at rosenlaw.com < Caution-mailto:lrosen at rosenlaw.com > <
> > Caution-Caution-mailto:lrosen at rosenlaw.com < Caution-mailto:
> lrosen at rosenlaw.com > > > wrote:
> >
> >
> >
> > It is true that this public domain result doesn't apply
> outside the U.S. But
> > if you apply a valid open source license to it – such as
> Apache 2.0 – that
> > should be good enough for everyone who doesn't live in the
> U.S. and
> > irrelevant for us here.
> >
> >
> >
> > Larry, are you suggesting that Cem considers using some
> statement more
> > or less like this, rather than a new license?
> > This U.S. Federal Government work is not copyrighted
> and dedicated
> > to the public domain in the USA. Alternatively, the
> Apache-2.0
> > license applies
> > outside of the USA ?
> >
> > On Sat, Jul 23, 2016 at 9:51 AM, Maarten Zeinstra <
> mz at kl.nl < Caution-mailto:mz at kl.nl > < Caution-Caution-
> > mailto:mz at kl.nl < Caution-mailto:mz at kl.nl > > > wrote:
> >
> >
> >
> > Is that the correct interpretation of the Berne
> convention? The convention
> > assigns copyright to foreigners of a signatory state with
> at least as strong
> > protection as own nationals. Since US government does not
> attract copyright
> > I am unsure if they can attract copyright in other
> jurisdictions.
> >
> >
> >
> > Maarten, are you suggesting then that the lack of
> copyright for a U.S. Federal
> > Government work would just then apply elsewhere too and
> that using an
> > alternative Apache license would not even be needed?
> >
> > --
> > Cordially
> > Philippe Ombredanne
> >
> > +1 650 799 0949 | pombredanne at nexB.com < Caution-mailto:
> pombredanne at nexb.com > < Caution-Caution-
> > mailto:pombredanne at nexb.com < Caution-mailto:pombredanne at nexb.com > >
> > DejaCode : What's in your code?! at Caution-Caution-
> http://www.dejacode.com < caution-Caution-
> > http://www.dejacode.com > < Caution-Caution-http://www.dejacode.com <
> caution-Caution-http://www.dejacode.com > >
> > nexB Inc. at Caution-Caution-http://www.nexb.com <
> caution-Caution-http://www.nexb.com > < Caution-Caution-
> > http://www.nexb.com < caution-Caution-http://www.nexb.com > >
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