[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
Mon Aug 8 17:07:50 UTC 2016
The ARL OSL does not change anything in the DFARS clauses; as I understand it (I am not a lawyer) the USG would have to have all the rights necessary to release the code before it could do so.
Thanks,
Cem Karan
> -----Original Message-----
> From: License-discuss [mailto:license-discuss-bounces at opensource.org] On Behalf Of Tzeng, Nigel H.
> Sent: Monday, August 08, 2016 12:46 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 to a Web browser.
>
>
>
>
> ----
>
> 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
> >>[Caution-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
> >>to a Web browser.
> >>
> >>
> >> ________________________________
> >>
> >>
> >>
> >> 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-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-Caution-https://www.kl.nl/en/opinion/why-the-met-does-not-open
> >>-any-real-d
> >>oors/ < Caution-
> >>
> >>Caution-https://www.kl.nl/en/opinion/why-the-met-does-not-open-any-rea
> >>l-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-Caution-www.kl.nl <
> >> Caution-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-
> >>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-Caution-http://www.copyright.gov/ < Caution-
> >>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-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-Caution-mailto:license-discuss-bounces at opensource.org <
> >>Caution-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-Caution-mailto:license-discuss at opensource.org >
> >> Cc: lrosen at rosenlaw.com < Caution-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-Caution-www.kl.nl <
> >>Caution-Caution-http://caution-Caution-Caution-www.kl.nl > <
> >>Caution-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-Caution-mailto:mz at kl.nl > < Caution-Caution-
> >>Caution-mailto:mz at kl.nl < Caution-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-
> >> Caution-http://www.cendi.gov/publications/04-8copyright.html#317 <
> >>
> >>
> >>Caution-Caution-Caution-http://www.cendi.gov/publications/04-8copyrigh
> >>t.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-Caution-www.kl.nl <
> >>Caution-Caution-http://caution-Caution-Caution-www.kl.nl > <
> >>Caution-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-
> >>Caution-mailto:cem.f.karan.civ at mail.mil > < Caution-
> >> Caution-Caution-mailto:cem.f.karan.civ at mail.mil <
> >>Caution-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-Caution-mailto:license-discuss-bounces at opensource.org
> >><
> >>Caution-Caution-mailto:license-
> >> discuss-bounces at opensource.org > <
> >>Caution-Caution-Caution-mailto:license-discuss- <
> >>Caution-Caution-mailto:license-discuss- >
> >> bounces at opensource.org <
> >>Caution-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-Caution-mailto:license-discuss at opensource.org > <
> >>Caution-Caution- Caution-mailto:license-discuss at opensource.org <
> >>Caution-Caution-mailto:license-discuss at opensource.org > >
> >> Cc: lrosen at rosenlaw.com <
> >>Caution-Caution-mailto:lrosen at rosenlaw.com > <
> >>Caution-Caution-
> >> Caution-mailto:lrosen at rosenlaw.com < Caution-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-Caution-https://www.government.nl/copyright <
> >> caution-
> >> Caution-Caution-Caution-https://www.government.nl/copyright > < Caution-
> >> Caution-Caution-Caution-https://www.government.nl/copyright <
> >>Caution-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-Caution-www.kl.nl <
> >>Caution-Caution-http://caution-caution-Caution-Caution-www.kl.nl > <
> >>Caution-Caution-Caution-http://caution-Caution-Caution-Caution-www.kl.
> >>nl/ > <
> >>Caution-Caution-
> >> Caution-Caution-http://www.kl.nl <
> >>Caution-Caution-http://www.kl.nl > <
> >>caution-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- Caution-mailto:pombredanne at nexb.com
> >>> < Caution-
> >> Caution-Caution-mailto:pombredanne at nexb.com <
> >>Caution-Caution-mailto:pombredanne at nexb.com > > < Caution-Caution-
> >>Caution-Caution-mailto:pombredanne at nexb.com <
> >>Caution-Caution-mailto:pombredanne at nexb.com > < Caution-Caution-
> >>Caution-mailto:pombredanne at nexb.com <
> >>Caution-Caution-mailto:pombredanne at nexb.com > >
> >>> >
> >> wrote:
> >>
> >> On Fri, Jul 22, 2016 at 11:23 PM, Lawrence Rosen
> >><lrosen at rosenlaw.com < Caution-Caution-mailto:lrosen at rosenlaw.com
> >> > < Caution-Caution-Caution-mailto:lrosen at rosenlaw.com <
> >>Caution-Caution-mailto:lrosen at rosenlaw.com >
> >>
> >>
> >> < Caution-Caution-Caution-Caution-mailto:lrosen at rosenlaw.com <
> >>Caution-Caution-mailto:lrosen at rosenlaw.com > <
> >>Caution-Caution-Caution-mailto:lrosen at rosenlaw.com <
> >>Caution-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-Caution-mailto:mz at kl.nl > < Caution-Caution-
> >>Caution-mailto:mz at kl.nl < Caution-Caution-mailto:mz at kl.nl > > < Caution-Caution-
> >> Caution-Caution-mailto:mz at kl.nl < Caution-Caution-mailto:mz at kl.nl
> >>> < Caution-Caution-Caution-mailto:mz at kl.nl < Caution-
> >>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-Caution-mailto:pombredanne at nexb.com > < Caution-Caution-
> >>Caution-mailto:pombredanne at nexb.com <
> >>Caution-Caution-mailto:pombredanne at nexb.com > > < Caution-Caution-
> >> Caution-Caution-mailto:pombredanne at nexb.com <
> >>Caution-Caution-mailto:pombredanne at nexb.com > < Caution-Caution-
> >>Caution-mailto:pombredanne at nexb.com <
> >>Caution-Caution-mailto:pombredanne at nexb.com > >
> >>>
> >> DejaCode : What's in your code?! at
> >>Caution-Caution-Caution-Caution-http://www.dejacode.com < caution-Caution-
> >> Caution-Caution-http://www.dejacode.com <
> >>Caution-Caution-http://www.dejacode.com >
> >>> < Caution-Caution-Caution-
> >> Caution-http://www.dejacode.com <
> >>caution-Caution-Caution-Caution-http://www.dejacode.com > >
> >> nexB Inc. at Caution-Caution-Caution-Caution-http://www.nexb.com <
> >>caution-Caution-Caution-Caution-http://www.nexb.com > < Caution-
> >> Caution-Caution-Caution-http://www.nexb.com <
> >>caution-Caution-Caution-Caution-http://www.nexb.com > >
> >> _______________________________________________
> >> License-discuss mailing list
> >> License-discuss at opensource.org <
> >>Caution-Caution-mailto:License-discuss at opensource.org > <
> >>Caution-Caution- Caution-mailto:License-discuss at opensource.org <
> >>Caution-Caution-mailto:License-discuss at opensource.org > > < Caution-Caution-
> >> Caution-Caution-mailto:License-discuss at opensource.org <
> >>Caution-Caution-mailto:License-discuss at opensource.org > < Caution-
> >>Caution-Caution-mailto:License-discuss at opensource.org <
> >>Caution-Caution-mailto:License-discuss at opensource.org > > >
> >>
> >>
> >>Caution-Caution-Caution-Caution-https://lists.opensource.org/cgi-bin/m
> >>ailman/l istinfo/license-discuss < caution-Caution-
> >>
> >>
> >>Caution-Caution-https://lists.opensource.org/cgi-bin/mailman/listinfo/
> >>license-
> >>discuss < Caution-
> >>
> >>Caution-https://lists.opensource.org/cgi-bin/mailman/listinfo/license-
> >>discuss >
> >> >
> >>
> >>
> >>
> >>
> >>
> >> _______________________________________________
> >> License-discuss mailing list
> >> License-discuss at opensource.org <
> >>Caution-Caution-mailto:License-discuss at opensource.org > <
> >>Caution-Caution- Caution-mailto:License-discuss at opensource.org <
> >>Caution-Caution-mailto:License-discuss at opensource.org > >
> >>
> >>
> >>Caution-Caution-Caution-https://lists.opensource.org/cgi-bin/mailman/l
> >>istinfo/
> >>license-discuss < Caution-Caution-
> >> Caution-https://lists.opensource.org/cgi-
> >> bin/mailman/listinfo/license-discuss >
> >>
> >>
> >>
> >>
> >>
> >> _______________________________________________
> >> License-discuss mailing list
> >> License-discuss at opensource.org <
> >>Caution-Caution-mailto:License-discuss at opensource.org >
> >>
> >>
> >>Caution-Caution-https://lists.opensource.org/cgi-bin/mailman/listinfo/
> >>license-d iscuss < Caution-Caution-https://lists.opensource.org/cgi-
> >> bin/mailman/listinfo/license-discuss >
> >>
> >>
> >>
> >>
> >> _______________________________________________
> >> License-discuss mailing list
> >> License-discuss at opensource.org <
> >>Caution-Caution-mailto:License-discuss at opensource.org >
> >>
> >>
> >>Caution-Caution-https://lists.opensource.org/cgi-bin/mailman/listinfo/
> >>license-di scuss < Caution-Caution-https://lists.opensource.org/cgi-
> >> bin/mailman/listinfo/license-discuss >
> >>
> >>
> >>
> >
>
> _______________________________________________
> License-discuss mailing list
> License-discuss at opensource.org
> Caution-https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss
-------------- next part --------------
A non-text attachment was scrubbed...
Name: smime.p7s
Type: application/pkcs7-signature
Size: 5559 bytes
Desc: not available
URL: <http://lists.opensource.org/pipermail/license-discuss_lists.opensource.org/attachments/20160808/c8039369/attachment.p7s>
More information about the License-discuss
mailing list