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

Tue Aug 16 21:11:35 UTC 2016

> -----Original Message-----
> From: License-discuss [mailto:license-discuss-bounces at opensource.org] On 
> Behalf Of Lawrence Rosen
> Sent: Tuesday, August 16, 2016 4:36 PM
> To: license-discuss at opensource.org
> Cc: Lawrence Rosen <lrosen at rosenlaw.com>
> Subject: Re: [License-discuss] [Non-DoD Source] Re: U.S. Army Research 
> Laboratory Open Source License (ARL OSL) 0.4.0
>
> Keran, your description of the "chain" is not usually correct for FOSS. The 
> Apache and GPL and MPL licenses don't have to work that way
> through sublicensing. Each licensee receives his or her license directly 
> from the licensor. There is no chain. The licensor (contractor) can
> directly enforce that license -- including its warranties and liability 
> disclaimers -- against each of its licensees even if it is not a copyright
> owner.
>
> In law, that means that privity [1] is not an enforcement problem for most 
> FOSS licenses because there are no contractual "third parties".
>
> > The closest analogy I can provide is that contract law is innocent
> > until proven guilty, while copyright is guilty until proven innocent.
>
> No.

I didn't say it was a *good* analogy! ;)

You're right that normal licenses don't rely on chains; they have copyright to 
fall back on.  If I have a piece of software licensed to me under the Apache 
2.0 license, then I'm allowed to do certain things because the license 
protects me from the copyright holder's legal attacks; in their eyes, I'm 
'guilty' until I can prove my innocence via the Apache 2.0 license (and my 
complying with its terms, of course!).

Contract law and the principle of privity means that I can only sue the person 
I had a contract with.  If the USG has a contract with A and A breaks the 
license in some way, and hands off the code to B, then B is an innocent party. 
The trick is that the USG has to prove that A was the guilty party.  In a 
chain, the USG would have to follow the chain until it could find the guilty 
party (innocent until proven guilty).  At that point the USG may be able to 
help the upstream party sue (I don't know if this is possible, I'm not a 
lawyer).

So, given that the USG doesn't have copyright to fall back on in all cases 
(copyright can be assigned to the USG, so there are cases where copyright 
applies), it has to make do with contract law.  This is why the ARL OSL is 
written as it is; it tries to use copyright whenever possible, but still 
provide protections when there is no copyright.

Thanks,
Cem Karan

> /Larry
>
> [1] Privity: The doctrine of privity in the common law of contract provides 
> that a contract cannot confer rights or impose obligations
> arising under it on any person or agent except the parties to it.
>
>
> -----Original Message-----
> From: Karan, Cem F CIV USARMY RDECOM ARL (US) 
> [Caution-mailto:cem.f.karan.civ at mail.mil]
> Sent: Tuesday, August 16, 2016 12:44 PM
> To: 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
>
> > -----Original Message-----
> > From: License-discuss
> > [Caution-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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