[License-discuss] [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

Tue Aug 16 19:43:54 UTC 2016

> -----Original Message-----
> From: License-discuss [mailto:license-discuss-bounces at opensource.org] On 
> Behalf Of Engel Nyst
> Sent: Tuesday, August 16, 2016 11:34 AM
> To: license-discuss <license-discuss at opensource.org>
> Subject: Re: [License-discuss] [Non-DoD Source] Re: U.S. Army Research 
> Laboratory Open Source License (ARL OSL) 0.4.0
>
> On Tue, Aug 16, 2016 at 5:12 PM, Karan, Cem F CIV USARMY RDECOM ARL
> (US) <cem.f.karan.civ at mail.mil> wrote:
> > OK, but wouldn't those changes mean that the license no longer applies
> > to the uncopyrightable portions?  That would mean that downstream
> > users would no longer have any protection from being sued, etc., right?
>
> The obligations (a)-(d) would not apply to the uncopyrightable portions. 
> That's not the whole license/contract, only those particular
> obligations that try to put "restrictions" on the rights to reproduce, 
> prepare derivative works, and distribute them.
>
> For example, (a) says "[you can reproduce this work], provided that ... you 
> give other recipients a copy of this license". In other words,
> "you can't reproduce this work if you don't add a copy of this license". 
> This obligation doesn't apply to a public domain work, I can
> reproduce it without.

OK, I see where you're coming from now.  I had to have the ARL Legal team 
explain this to me as well, but the ARL OSL is actually a contract, and the 
contract can apply even if there is no copyright.  We release material to our 
collaborators on a regular basis under contract; we even do this with 
software, even though it is in the public domain.  If they break the contract, 
we can sue them, but we can't sue anyone that they delivered the software to 
(it's in the public domain, so we don't have any copyright protections to sue 
over).  The ARL OSL extends this as a chain; the USG releases the software to 
anyone that wants to download it, but by downloading it, they agree to the 
contract.  That person in turn can hand off the software to another person, 
forming the chain.  However, if the chain is broken, the USG only has the 
right to sue the first person that broke the chain; the others may be able to 
claim that they got the software in good faith.  Since there is no copyright 
involved, and since they didn't break the contract, they are innocent; only 
the person that broke the chain originally is liable (note that I'm not a 
lawyer, and may have gotten some of this wrong; it's just my understanding 
from the ARL Legal team).  This means that to sue, the USG will need to prove 
that the person was the first one in the chain to break the contract.

Copyright is something entirely different from contract law.  Copyright is a 
bundle of rights that an author gets by creating a work.  The license allows a 
user to use the work without getting sued/stopped/etc.  The trick is that 
since copyright attaches to a work AND since you can't 
copy/use/display/perform/etc. a work without permission from the copyright 
holders, you have to be able to point to the license that allows you to use 
the work without being sued.  That means that a copyright holder doesn't need 
to follow a chain, it just needs to demonstrate that it has copyright on the 
work, and that its license is being violated.

The closest analogy I can provide is that contract law is innocent until 
proven guilty, while copyright is guilty until proven innocent.

> But I'm not sure what you're worried about, sue for what? These
> (a)-(d) obligations have nothing to do with suing users, do they? ARL OSL 
> has all the other clauses, which apply fine regardless of whether
> the underlying Work is copyrighted or not, like disclaimers of liability and 
> clause 5.

No, the problem is that removing those terms suggests that you can strip out 
the ARL OSL from any part that is in the public domain.  Once that happens, 
the material no longer has the ARL OSL protecting downstream users from 
predatory and unscrupulous individuals.  That's all.

Thanks,
Cem Karan

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