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

Tue Aug 29 16:17:10 UTC 2017

I'm on active duty at Treasury until the close of business on Thursday, myself.  I wouldn't presume for either of us to lobby.  Filtering issues up the chain for The President to lobby The Congress about is the rule for the two of us in many cases.

The main problem I see in using licenses for USG-produced works is that the federal government is unlike most software producers.  If it doesn't like an aspect of copyright law, it can change it.  It can negotiate changes to the Berne Convention.  If it doesn't like a court decision, it can change the law.  Most open source authors cannot directly do things like this regardless of how well drafted a license may become.

A consistent USG-wide policy is needed.  Using licenses rooted in copyright law doesn't seem right when applied to the government itself and is part of the continuing issues in finding an appropriate pre-existing license.  Executive-Legislative action seems best to resolve pending questions.

Stephen Michael Kellat

On August 29, 2017 8:46:41 AM EDT, "Karan, Cem F CIV USARMY RDECOM ARL (US)" <cem.f.karan.civ at mail.mil> wrote:
>Since I'm a Federal employee, and since putting together an Open Source
>policy 
>for the Army Research Laboratory is part of my job, I'm barred from
>directly 
>lobbying Congress on this matter [1-3].  ARL's legal counsel have also
>told me 
>that I'm not allowed to encourage or discourage anyone to lobby
>Congress on 
>behalf of ARL.  As an outside group, OSI can do what it feels like.
>
>Thanks,
>Cem Karan
>
>[1] https://ethics.od.nih.gov/topics/lobbying.htm
>[2] https://www.ethics.usda.gov/rules/guides/lobbying.htm
>[3] https://www.law.cornell.edu/uscode/text/18/1913
>
>> -----Original Message-----
>> From: Stephen Michael Kellat [mailto:smkellat at yahoo.com]
>> Sent: Monday, August 28, 2017 12:35 PM
>> To: license-discuss at opensource.org; Karan, Cem F CIV USARMY RDECOM
>ARL (US)
>> <cem.f.karan.civ at mail.mil>; Richard Fontana
>> <fontana at sharpeleven.org>
>> Cc: license-discuss at opensource.org
>> Subject: Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0,
>Copyfraud and
>> the US Government
>>
>> 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 [Caution-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-Caution-https://en.wikipedia.org/wiki/Severability <
>> Caution-https://en.wikipedia.org/wiki/Severability
>> > ) which I've
>> 			 touched on before, and the second has to do with copyfraud
>> 			 (Caution-Caution-https://en.wikipedia.org/wiki/Copyfraud <
>> Caution-https://en.wikipedia.org/wiki/Copyfraud >
>> ).
>> 			 Copyfraud is defined within 17 U.S.C. 506, section (c)
>>
>>
>(Caution-Caution-https://www.gpo.gov/fdsys/pkg/USCODE-2010-title17/html/USCODE-2010-title17-chap5-
>> sec506.htm <
>>
>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-Caution-https://github.com/deptofdefense/code.mil/blob/master/Proposal/INTENT.md
>> < 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-Caution-https://opensource.org/licenses/alphabetical <
>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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