[License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

Tzeng, Nigel H. Nigel.Tzeng at jhuapl.edu
Mon Aug 8 16:46:13 UTC 2016 

Cam,

Could you describe what the impact would be to contractors under DFARS
clauses 252.227-7013/7014 and ARL OSL?  In particular where software was
developed at private expense or mixed funding and the government has less
than unlimited rights.

Regards,

Nigel


On 8/8/16, 8:32 AM, "License-discuss on behalf of Karan, Cem F CIV USARMY
RDECOM ARL (US)" <license-discuss-bounces at opensource.org on behalf of
cem.f.karan.civ at mail.mil> wrote:

>The problem is that while the original USG works don't have copyright,
>works produced by contributors may.  E.g., any code supplied by
>contractors, anything provided by persons outside the USG, etc.  We need
>to have a license that both protects those individuals, and ensures that
>they don't use their copyright to harm others. If it were possible to
>automatically swap in the Apache 2.0 license whenever and wherever there
>was copyright, we'd do that.  My understanding from our lawyers is that
>we could only do that if the USG owned the code outright; since
>contributors are licensing the code to the USG (and to anyone
>downstream), switching the license would require asking each contributor
>to agree to the change; we couldn't do it automatically.
>
>Remember, the goal is not just to protect the USG, it is also to protect
>all contributors and downstream users of any code from legal headaches.
>
>As for enforcing the license, there are three ways.  If there is
>copyright on a piece of work, then the normal copyright enforcement
>mechanisms apply.  If there is no copyright, the USG can still enforce
>trademark rules, forcing a non-compliant contributor or downstream user
>to either comply, or make it clear that they have a different piece of
>software.  Finally, contributors are forming a contract with the USG when
>they contribute to USG projects.  This should allow the USG to sue if
>anyone that breaks the contract; note that this is an as-yet untested
>legal theory, and would need to be litigated to be proven true or false.
>
>Thanks,
>Cem Karan
>
>> -----Original Message-----
>> From: License-discuss [mailto:license-discuss-bounces at opensource.org]
>>On Behalf Of Kevin Fleming
>> Sent: Friday, August 05, 2016 3:48 PM
>> To: license-discuss at opensource.org
>> 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
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>> 
>> 
>> ________________________________
>> 
>> 
>> 
>> Thanks for summarizing; I think you and I agree :-)
>> 
>> 
>> I cannot envision any sort of contract which is designed to allow
>>access to the code, with modification, distribution, derivation, and
>>other
>> permissions, but which also allows the USG to enforce any sort of
>>restrictions on those activities (given the lack of copyright). I'm not a
>> lawyer, but having been involved on both sides of dozens of open source
>>licenses, I know what I (and my employer) would be able to
>> understand and accept, and as a result I don't see how such a contract
>>would do anything but interfere with adoption of the software
>> covered by it.
>> 
>> 
>> If, as has been mentioned, there are patents and/or trademarks
>>involved, then a contract which clearly addresses those aspects, and only
>> those aspects, would make much more sense.
>> 
>> 
>> On Wed, Aug 3, 2016 at 9:29 AM, Maarten Zeinstra <mz at kl.nl <
>>Caution-mailto:mz at kl.nl > > wrote:
>> 
>> 
>> 	Hi Kevin and Cem,
>> 
>> 	I think the confusion here is indeed about ownership vs, access, As I
>>understand Cem¹s project he wants to provide access to third
>> parties to its code and wants to Œlicense¹ 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-d
>>oors/ < 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
>> 
>> 			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.
>> 
>> 
>> 			________________________________
>> 
>> 
>> 
>> 			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 >  | 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:
>> 
>> 			³The 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.² - House Report No. 94-1476
>> 
>> 			and
>> 
>> 			³3.1.7  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.²
>>Caution-Caution-
>> http://www.cendi.gov/publications/04-8copyright.html#317 <
>> 
>>			Caution-Caution-http://www.cendi.gov/publications/04-8copyright.html#3
>>17 >
>> 
>> 			However I am not sure how this would work with the Berne Convention,
>>especially article 7(8) which states: Œ[..]
>> 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.¹ 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/ >  | 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- <
>>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
>> 
>> 			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-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
>> >  >  (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-
>> 			Caution-http://www.kl.nl < Caution-http://www.kl.nl >  <
>>caution-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 >  >  < 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-
>> 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 >  >
>>>
>> 			DejaCode : What's in your code?! at
>>Caution-Caution-Caution-http://www.dejacode.com < caution-Caution-
>> 			Caution-http://www.dejacode.com < Caution-http://www.dejacode.com >
>>>  < Caution-Caution-Caution-
>> http://www.dejacode.com <
>>caution-Caution-Caution-http://www.dejacode.com >  >
>> 			nexB Inc. at Caution-Caution-Caution-http://www.nexb.com <
>>caution-Caution-Caution-http://www.nexb.com >
>> < Caution-
>> 			Caution-Caution-http://www.nexb.com <
>>caution-Caution-Caution-http://www.nexb.com >  >
>> 			_______________________________________________
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