[License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal
Karan, Cem F CIV USARMY RDECOM ARL (US)
cem.f.karan.civ at mail.mil
Fri Aug 5 19:59:39 UTC 2016
If by 'restrict' you mean 'comply with the terms of the ARL OSL', then I agree with you. Remember, the only reason we're pursuing the ARL OSL is because the vast majority of our work has no copyright, and therefore can't be licensed under the standard licenses. If we could, we'd drop the ARL OSL and use Apache 2.0 instead (I've floated the idea of an Apache 2.1 or 3.0 that addressed the copyright issue on the ASF Legal Discuss mailing list, but haven't had any interest yet). By the way, the Apache 2.0 license is fairly permissive; in practice, it just prevents bad actors from abusing IP and copyright law in a manner similar to what happened with Rambus (see https://en.wikipedia.org/wiki/Rambus#Lawsuits), along with the usual disclaimers against liability and warranty.
As for whether or not the ARL OSL is enforceable... we won't know until it's been litigated. The theory for contract-based licenses like the ARL OSL is that either a) everyone keeps to the terms of the license (forming a chain), or b) if someone breaks the terms, they have broken the contract with their immediate predecessor in the chain of contracts, and by induction, with everyone else in the chain. Since they've broken the contract, they no longer have the right to use the software, and can be forced to stop via contract law. Moreover, if the contract has been written correctly, it can fall back onto copyright law, in which case anyone that has licensed their work via copyright can also sue. This is what the ARL OSL is trying to allow; while the USG may not have standing, contributors to a project may have standing, and may wish to enforce their copyright on the contract breaker.
Berne convention: I am working to contact the appropriate officials within the US Department of Justice to find case law pertaining to copyright on USG works in foreign courts. However, the lawyers involved are generally attached to the US embassies that they litigate in, so time zones are an issue. As and when I find case law discussing this problem, I'll bring to everyone's attention.
Thanks,
Cem Karan
> -----Original Message-----
> From: License-discuss [mailto:license-discuss-bounces at opensource.org] On Behalf Of Maarten Zeinstra
> Sent: Wednesday, August 03, 2016 9:30 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
>
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>
> Hi Kevin and Cem,
>
> I think the confusion here is indeed about ownership vs, access, As I understand Cem’s project he wants to provide access to third parties
> to its code and wants to ‘license’ it. However open source license (afaik) deal with the ownership part of the code and does not deal in
> restricting access to the code.
>
> I think Cem is indeed on the right track with #3 in his reply. You cannot rely on copyright, you could only focus on any patent aspects of
> open source license. Coming from the Creative Commons world, I do not know about patents in Open Source licenses.
>
> I also think that is near impossible to enforce access limiting contracts in a one-to-all way. I wrote an opinion about a related situation
> about the New York Metropolitan Museum that provided free downloads of its public domain images but restricted those downloads to
> non-commercial use: Caution-https://www.kl.nl/en/opinion/why-the-met-does-not-open-any-real-doors/ < Caution-
> https://www.kl.nl/en/opinion/why-the-met-does-not-open-any-real-doors/ > (tl;dr: you cannot enforce general rules about free
> downloads, and it is a bad practise to try to do so).
>
> the USG cannot enforce open source license as they have no underlying copyright, any contract drafted that is similar to an open source
> license without the licensing of copyright and limiting the access or reuse of the work should not be considered a open source license and
> fall into the category of bad practise.
>
> Re: Berne Convention. Sure Page Miller is right. But try and proof me wrong :) but no country in the world has a paragraph in their
> national copyright act that provides the USG with copyright where they do not hold that nationally. They would rely on the absence of
> formalities but that means you do need in a rights holder in the country of origine, which does not exist.
>
> Regards,
>
> Maarten
>
> --
> Kennisland | Caution-www.kl.nl < Caution-http://www.kl.nl > | t +31205756720 | m +31643053919 | @mzeinstra
>
>
> On 03 Aug 2016, at 15:17, 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 just got off the phone with Page Miller in the US Copyright office (Caution-http://www.copyright.gov/ < Caution-
> http://www.copyright.gov/ > ). She is the person at the USG that specializes in these types of questions. She told me that the Berne
> convention does not change laws in individual countries, it just removes certain formalities. As such, if the foreign government permits
> the USG to hold copyright in the foreign country, then the USG is permitted to do so. You can contact the copyright office at
> copyinfo at loc.gov < Caution-mailto:copyinfo at loc.gov > . If you put in a line like 'Attention: Page Miller', it will get routed to her to
> answer.
>
> So, the very latest position of the USG is that it can apply for copyright protections for USG-produced works that have no
> copyright within the US.
>
> 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: Monday, August 01, 2016 4:36 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: Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal
>
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> ________________________________
>
>
>
> I did some further investigating into this. The sources that I and John refer to are from 1976, which is pre-Berne (US in
> force: March 1,
> 1989). So this would further cast doubts on the claims of copyright abroad of the US government.
>
> Regards,
>
> Maarten
>
>
>
> --
> 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 01 Aug 2016, at 10:20, 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:
>
> 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-Caution-
> http://www.cendi.gov/publications/04-8copyright.html#317 < Caution-Caution-http://www.cendi.gov/publications/04-
> 8copyright.html#317 > <
> Caution-Caution-http://www.cendi.gov/publications/04-8copyright.html#317 < Caution-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-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 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 > < Caution-
> Caution-mailto: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-Caution-mailto:license-discuss-bounces at opensource.org < Caution-mailto:license-discuss-
> bounces at opensource.org > < Caution-Caution-mailto:license-discuss-
> bounces at opensource.org < Caution-mailto: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 > < Caution-Caution-
> mailto:license-discuss at opensource.org < Caution-mailto:license-discuss at opensource.org > >
> Cc: lrosen at rosenlaw.com < Caution-mailto:lrosen at rosenlaw.com > < Caution-Caution-mailto: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
>
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>
>
> 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-Caution-https://www.government.nl/copyright < Caution-
> Caution-Caution-https://www.government.nl/copyright > < caution-
> Caution-Caution-https://www.government.nl/copyright < Caution-Caution-https://www.government.nl/copyright > > <
> Caution-
> Caution-Caution-https://www.government.nl/copyright < Caution-Caution-https://www.government.nl/copyright > <
> Caution-Caution-https://www.government.nl/copyright < Caution-Caution-https://www.government.nl/copyright > > > (english
> version). I advise the US army does something similar as well.
>
> Regards,
>
> Maarten Zeinstra
>
> --
> Kennisland | Caution-Caution-Caution-www.kl.nl < Caution-http://caution-caution-Caution-www.kl.nl > < Caution-
> Caution-http://caution-Caution-Caution-www.kl.nl/ < Caution-Caution-http://caution-Caution-Caution-www.kl.nl/ > > < Caution-
> Caution-
> Caution-http://www.kl.nl < Caution-http://www.kl.nl > < caution-Caution-Caution-http://www.kl.nl < caution-Caution-
> Caution-http://www.kl.nl > > > | t +31205756720 | m +31643053919 | @mzeinstra
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>
> 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 > > < Caution-Caution-Caution-
> mailto: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 >
>
>
> < Caution-Caution-Caution-mailto: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 > > < Caution-Caution-
> Caution-mailto: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-
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