[License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and the US Government

Mon Aug 28 15:59:44 UTC 2017

> -----Original Message-----
> From: Richard Fontana [mailto:fontana at sharpeleven.org]
> Sent: Monday, August 28, 2017 11:39 AM
> To: Karan, Cem F CIV USARMY RDECOM ARL (US) <cem.f.karan.civ at mail.mil>
> Cc: license-discuss at opensource.org
> Subject: [Non-DoD Source] Re: NOSA 2.0, Copyfraud and the US Government
>
> On Mon, Aug 28, 2017 at 02:18:10PM +0000, Karan, Cem F CIV USARMY RDECOM ARL 
> (US) wrote:
> > Hi all, as you know I've been pushing the position that the US
> > Government may have problems using copyright-based licenses on works
> > that do not have copyright attached.  One of the lawyers I've been
> > working on this with has been kind enough to dig up the exact statutes
> > and give some clearer legal reasoning on what the issues are.  It
> > basically boils down to two issues; first, there is question of
> > severability
> > (Caution-https://en.wikipedia.org/wiki/Severability) which I've
> > touched on before, and the second has to do with copyfraud 
> > (Caution-https://en.wikipedia.org/wiki/Copyfraud).
> > Copyfraud is defined within 17 U.S.C. 506, section (c)
> > (Caution-https://www.gpo.gov/fdsys/pkg/USCODE-2010-title17/html/USCODE-2010-title17-chap5-sec506.htm).
> > I've copied out the relevant language below; the commentary within the
> > brackets is from ARL's lawyer:
> >
> > """
> > (c) Fraudulent Copyright Notice.-
> > Any person who, with fraudulent intent, places on any article a notice
> > of copyright or words of the same purport that such person knows to be
> > false, or who, with fraudulent intent, publicly distributes or imports
> > for public distribution any article bearing such notice or words that
> > such person knows to be false, shall be fined not more than $2,500.
> > [Note - Any software pushed out under Open Source would not have a
> > notice of copyright affixed to the software. However, would software
> > pushed out under an Open Source license that assumes the existence of
> > copyright be considered tantamount to a notice of copyright and
> > therefore an actionable fraud under this section?  Don't know.] """
> >
> > I know that there were questions at one time about the need for
> > special licenses/agreements like NOSA 2.0, but this is one of those
> > potential problems.  Copyright-based licenses are great for works that
> > have copyright attached, but they may be problematic for works that
> > don't have copyright attached.
>
> As has been pointed out before, I think, in software (including but not 
> limited to open source) copyright notices are commonly juxtaposed
> with material that is clearly or likely not subject to copyright.
>
> Anyway, the theoretical risk here could be eliminated in lots of ways, it 
> seems to me (even without getting into what would be required to
> show 'fraudulent intent'). For example, the US government could include a 
> copyright and license notice like the following:
>
>   The following material may not be subject to copyright in the United
>   States under 17 U.S.C. 105. To the extent it is subject to
>   copyright, it is released under the following open source license: [...]
>
> There's also the approach that is seen in 
> Caution-https://github.com/deptofdefense/code.mil/blob/master/Proposal/INTENT.md.
>
> > So, given that we had come up with the idea of using two licenses in
> > projects
> > (CC0 for portions of a work that don't have copyright, and an
> > OSI-approved license for portions of a work that do have copyright
> > attached), why should OSI care?  The problem is that CC0 is still not
> > OSI-approved (at least, it isn't on the list at
> > Caution-https://opensource.org/licenses/alphabetical).  That means
> > that the Government could be putting out works that are in some kind
> > of zombie-like state, half-Open Source, and half not.  If OSI approved
> > CC0 as being an Open Source license, or if NOSA 2.0 was approved, then the 
> > problems could be fixed.  So, where are we in either case?
>
> As I've pointed out before, CC0 itself does not eliminate the problem your 
> colleagues say they are concerned about, because CC0 assumes
> copyright ownership. If they sincerely think it's dangerous to use the MIT 
> license then they should be consistent and say it's dangerous to
> use CC0 too.
>
> I think the use you are suggesting for use of CC0 is not actually how
> CC0 is meant to be used. CC0 is designed for the case where copyright 
> ownership is likely or plausibly present but the owner wishes to get
> as close as possible to waiving all of their rights. I think you are saying 
> you want CC0 to be used to ceremonially declare (possibly in some
> cases incorrectly or misleadingly) that something that is not subject to 
> copyright ownership in the first place is indeed ... not subject to
> copyright ownership in the first place -- which is not what
> CC0 says.
>
> Richard

I see what you're saying, and I understand how it may appear ceremonial, but 
there is an added wrinkle of copyright in non-US jurisdictions.  By using CC0 
in this way, it solves the question and 'levels the playing field' for 
everyone, if that makes sense.

However, I *DO* see the point you're making about how CC0 may not be useable 
in this way.  I'll see what our lawyers say about this.

Thanks,
Cem Karan

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