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

[Engel Nyst]

On Tue, Aug 16, 2016 at 9:43 PM, Karan, Cem F CIV USARMY RDECOM ARL
(US) <cem.f.karan.civ at mail.mil> wrote:
> 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.

I understand the intention, and I know it seems tempting to work via contract,
but here's the problem:

https://www.law.cornell.edu/uscode/text/17/301

"On and after January 1, 1978, all legal or equitable rights that are
equivalent to any of
the exclusive rights within the general scope of copyright as
specified by section 106 in
works of authorship that are fixed in a tangible medium of expression
and come within
the subject matter of copyright as specified by sections 102 and 103,
whether created
before or after that date and whether published or unpublished, are
governed exclusively
by this title. Thereafter, no person is entitled to any such right or
equivalent right in any
such work under the common law or statutes of any State."

Some claims of breaches of contract will fall squarely into what this
paragraph says: they
would claim the same thing as the rights under copyright.

In other words: if A tries to make a contract with B, where A says
"you can't reproduce this
work", that obligation lives or dies via copyright alone. (if nothing
else is involved)

>From what you say, you intend here exactly that: to recreate the
rights to reproduce,
distribute, or make derivative works, or to put obligations as if you
had them, through
contract. It seems to me that copyright law already says USG can't do that.

You can do a lot of contracts, to be sure; just not those who simulate
copyright.

Caselaw on this exact topic seems a mess. I don't know what would come of this;
without getting into it, here's my suggestion, considering all I
understand from your
intentions:

The interesting thing with your intended license/contract is that
preemption doesn't
matter for malevolent contributors: you can STILL make it so that
contributors will provide
their (presumably copyrightable) work under it, in your projects.
Because only clauses
2 and 4 would be affected by preemption, redrafting the
license/contract so that the rest
stands in all cases should give you the same effect (or close).

Apache license is almost unique in the following respect: there are 2
explicit directions in
which it works.

Direction (1) - from USG/others to the world.

Here you have the problem that if you start without copyright, and the
license tries to usurp
the domain of copyright rights, that can make it all fail. You said it
yourself: the concern is
that it depends on copyright, and thus may all be deemed invalid.
Indeed, I'm just
saying that recreating copyright-like rights via contract where title
17 clearly denied them,
can also be deemed invalid.

Direction (2) - from a "contributor" to USG and the world, via
"intentional submission for
inclusion in the Work" (clause 5).

This direction (2) doesn't depend on copyright, nor on direction (1).
In order to argue that
it applies, at least in many cases, I'd suggest you need a good
contract/license, one
that would stand when someone "intentionally submits for inclusion in
the Work to the
Licensor". Because with a license/contract, ANY work "intentionally
submitted" is
licensed by its author under ARL OSL.

Including patent grant, and things like the case you pointed out on
wikipedia shouldn't
happen.

>> 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.

ARL OSL would apply for the projects under ARL OSL, including
*contributors* to these projects.

It wouldn't apply if I take the software and reproduce it on my own
(without contributing
anything anywhere).

It wouldn't apply if I make a derivative work and try to fool my
downstream by, I don't know,
revoking the license I claimed to give them. But that's also true of
Apache License 2.0.