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

Stephen Michael Kellat smkellat at yahoo.com
Mon Aug 28 16:34:34 UTC 2017

As bad as it sounds, would a brief statutory clarification be useful in this instance?  We can write around Congress all we want but getting them to fix this to be public domain globally is best done by amending the law.  A small rider proposed through channels per the Recommendations Clause in Article II, Section 3 of the federal constitution would work nicely.

Stephen Michael Kellat

On August 28, 2017 11:59:44 AM EDT, "Karan, Cem F CIV USARMY RDECOM ARL (US)" <cem.f.karan.civ at mail.mil> wrote:
>> -----Original Message-----
>> From: Richard Fontana [mailto:fontana at sharpeleven.org]
>> Sent: Monday, August 28, 2017 11:39 AM
><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
>> On Mon, Aug 28, 2017 at 02:18:10PM +0000, Karan, Cem F CIV USARMY
>> (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
>> > 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
>> > 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)
>> >
>> > I've copied out the relevant language below; the commentary within
>> > brackets is from ARL's lawyer:
>> >
>> > """
>> > (c) Fraudulent Copyright Notice.-
>> > Any person who, with fraudulent intent, places on any article a
>> > of copyright or words of the same purport that such person knows to
>> > false, or who, with fraudulent intent, publicly distributes or
>> > for public distribution any article bearing such notice or words
>> > 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
>> > pushed out under an Open Source license that assumes the existence
>> > 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
>> > 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
>> 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
>>   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 
>> > So, given that we had come up with the idea of using two licenses
>> > 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
>> > 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
>> > of zombie-like state, half-Open Source, and half not.  If OSI
>> > 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
>> 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
>> you want CC0 to be used to ceremonially declare (possibly in some
>> cases incorrectly or misleadingly) that something that is not subject
>> 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
>in this way.  I'll see what our lawyers say about this.
>Cem Karan
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