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

Thu Aug 18 18:34:54 UTC 2016

Cam Karan asked:

> If you have case law where the USG won a lawsuit over material licensed under one of the copyright-based OSI licenses where there was no claim of copyright, please provide it. 

A copyright lawsuit requires copyright, so that's impossible. 

A contract lawsuit requires damages and is usually fought in state (or small claims?) court without even being published. Ask your own attorneys if they have ever won a contract lawsuit in a state or federal court without proof of damages because the USG or anyone else merely distributed harmless public domain software.

/Larry

Lawrence Rosen

Rosenlaw ( <http://www.rosenlaw.com/> www.rosenlaw.com) 

3001 King Ranch Rd., Ukiah, CA 95482

Cell: 707-478-8932 

This email is licensed under  <https://creativecommons.org/licenses/by/4.0/> CC-BY-4.0. Please copy freely.  

From: Lawrence Rosen [mailto:lrosen at rosenlaw.com] 
Sent: Thursday, August 18, 2016 11:15 AM
To: license-discuss at opensource.org
Cc: Lawrence Rosen <lrosen at rosenlaw.com>
Subject: RE: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

Cem Karan wrote:

> The only reason that the ARL OSL was proposed AT ALL is because there is a strong concern that since USG code doesn't have copyright [1], any license that relies exclusively on copyright may be invalidated by the courts [2].

We understand that strong concern. Most of us don't share it.

Many of us have noted that NO FOSS LICENSE relies exclusively on copyright law. That argument was made here on this list years ago. No court anywhere has ever decided a FOSS case without also using CONTRACT interpretation rules.

We also noted that MOST FOSS SOFTWARE already contains public domain components. Perhaps ALL FOSS SOFTWARE, considering that engineers often claim copyright on more than they deserve.

Our U.S. Army software is no different: Portions copyright; portions not.

We attorneys here will try to convince your attorneys of that if they consent to speak to us. You engineers should not volunteer to be translators in that discussion, but listen in. And we attorneys should speak candidly about copyright and contract law. Several of us are specialists, and several here have already volunteered to have that legal chat with your counsel.

/Larry

Lawrence Rosen

Rosenlaw (www.rosenlaw.com <http://www.rosenlaw.com> ) 

3001 King Ranch Rd., Ukiah, CA 95482

Cell: 707-478-8932 

-----Original Message-----
From: Karan, Cem F CIV USARMY RDECOM ARL (US) [mailto:cem.f.karan.civ at mail.mil] 
Sent: Thursday, August 18, 2016 10:52 AM
To: license-discuss at opensource.org <mailto:license-discuss at opensource.org> 
Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

The only reason that the ARL OSL was proposed AT ALL is because there is a strong concern that since USG code doesn't have copyright [1], any license that relies exclusively on copyright may be invalidated by the courts [2].  If the USG had copyright, then I could stop pushing the ARL OSL entirely as we could use any of the OSI-supplied licenses.

So to be 100% clear, we don't know if any copyright-based license will stand up in court for works that don't have copyright attached.  The only reason that the ARL OSL was proposed was to deal with that particular situation.  If you have case law where the USG won a lawsuit over material licensed under one of the copyright-based OSI licenses where there was no claim of copyright, please provide it.  I can pass that to the ARL Legal team who can then review it.

Thanks,

Cem Karan

[1] I'm making the usual assumption that this was code created by USG employees in the course of their duties; copyright can be assigned to the USG where and when it exists, but I'm ignoring that for right now.

[2] My expectation is that it would be invalidated for the USG-supplied portion, but not for any portion that had copyright attached.  Note that this is just my opinion, and I have nothing to back it up.  IANAL.

> -----Original Message-----

> From: License-discuss [ <mailto:license-discuss-bounces at opensource.org> mailto:license-discuss-bounces at opensource.org] 

> On Behalf Of Smith, McCoy

> Sent: Wednesday, August 17, 2016 2:54 PM

> To:  <mailto:license-discuss at opensource.org> license-discuss at opensource.org

> Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: 

> U.S. Army Research Laboratory Open Source License (ARL OSL)

> 0.4.0

> 

> Or to put a finer point on it, the other issues you identify appear to 

> be ones that are explicitly addressed in many already-approved OSI 

> licenses, including Apache 2.0, the one you are modeling your license upon.

> 

> I hope you're getting a sense that there are several lawyers on this 

> mailing list -- lawyers who have years of experience looking at, 

> debating, and giving advice on the issues you identify in this 

> submission -- who think that your proposed license is a variant of 

> Apache 2.0 designed to solve a "problem" for USG users with Apache 2.0 

> that we are skeptical even exists.  Perhaps the ARL lawyers can 

> clarify what the problem is, and that we are missing something.  But I 

> think at least I am having a hard time understanding how this license 

> does anything that Apache 2.0 doesn't.

> 

> -----Original Message-----

> From: License-discuss

> [Caution-mailto:license-discuss-bounces at opensource.org] On Behalf Of 

> Richard Fontana

> Sent: Wednesday, August 17, 2016 11:33 AM

> To:  <mailto:license-discuss at opensource.org> license-discuss at opensource.org

> Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: 

> U.S. Army Research Laboratory Open Source License (ARL OSL)

> 0.4.0

> 

> On Wed, Aug 17, 2016 at 06:17:07PM +0000, Karan, Cem F CIV USARMY 

> RDECOM ARL

> (US) wrote:

> >

> > Once again, liability isn't the only issue; there are also copyright 

> > issues (for contributors), and IP issues.  If we could solve the 

> > problem via a simple disclaimer of liability, we would.  We need to 

> > handle ALL the issues.

> 

> Even if you were correct in the assertions you've made about ARL code, 

> why is a new license needed for contributors other than ARL?

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