[License-discuss] U.S. Army Research Laboratory Open Source License (ARL OSL) Version 0.4.1
Karan, Cem F CIV USARMY RDECOM ARL (US)
cem.f.karan.civ at mail.mil
Mon Feb 27 17:01:14 UTC 2017
All, I've been asked to republish the U.S. Army Research Laboratory Open
Source License (ARL OSL) once again so that others can read it. This is the
most current copy. It is based off of the Apache 2.0 license that can be
found at http://www.apache.org/licenses/LICENSE-2.0.txt, and is intended to
make US Government (USG) works released under it completely interoperable with
the Apache 2.0 license, while still dealing with the fact that most USG works
do not have copyright protections. See further down this message as to why
this is necessary.
The goals of the license are as follows:
- Protect the USG, contributors, and users of all work licensed under the
license against lawsuits in the same manner that the Apache 2.0 license
protects those groups when works have copyright.
- Be interoperable with Apache 2.0. Ideally, there would be no airgap between
the ARL OSL and Apache 2.0, however because USG works don't have copyright,
there will be some airgap. For works that have copyright, the Apache 2.0
license is preferable. If a project is licensed under the ARL OSL, it should
be able to accept works that are licensed under the Apache 2.0 license, **and
the contribution should be able to remain licensed under Apache 2.0**. This
will mean that portions of the USG sponsored project will be relicensed under
ARL OSL and other portions under Apache 2.0. I don't know if the ARL OSL
meets those goals, if anyone sees a problem with this interpretation, please
say so.
- Protect Open Source. That is, the ARL OSL should meet the Open Source
Definition at https://opensource.org/osd. If the ARL OSL doesn't meet these
requirements, then it needs to be corrected.
For those that don't know why we're pushing a new license/agreement, this is a
quick recap of the problems (search through the mailing list archives to see
more of what the problems are if you're interested).
In most cases, the USG doesn't allow itself to have copyright on USG-produced
works within the US. This means that if a license has clauses that depend on
copyright for enforcement, then those clauses are likely unenforceable, at
least for those portions of the code that were USG-produced. By itself, this
probably wouldn't be a major problem; the truly serious issue is severability
(https://en.wikipedia.org/wiki/Severability). The concern is that if the USG
uses a license that depends on copyright (e.g., Apache 2.0), and those clauses
are declared unenforceable by the courts, then it may be possible to declare
the entire license unenforceable. If you read the Apache 2.0 license, you'll
notice that the Apache Foundation did an (IMHO) excellent job of dealing with
liability, warranty, and IP rights, protecting not only groups accepting
contributions, but also all downstream users. Losing that protection could
harm not only the USG, but also all downstream users as a flurry of litigation
happens. This could cause a chilling effect on the USG, making upper
management far less interested in participating in Open Source, or even
permitting USG works to be released as Open Source.
I personally don't want to see that happen. I want to ensure that Open Source
remains Open Source, and that the gates to litigation Hell remain firmly
closed. This is why I'm not willing to risk using copyright-based licenses on
works that don't have copyright attached. If you believe that this isn't a
concern, I respect your opinion, but I'd like to see case law, or better yet,
Federal law that prevents this sort of problem from popping up. So far,
neither I, nor the lawyers at ARL, nor the lawyers at the Justice department
have been able to find any case law or laws explaining what would happen in
such a case. If you know of such laws or case law, please let me know.
For those that believe these concerns are invalid, I'd like to issue a
challenge to you; would you be willing to enter into a binding contract with
the USG indemnifying it and its agents against the problems outlined above?
That is, if the USG uses a copyright-based license on works it produces that
have no copyright attached, and that license is declared invalid because the
works have no copyright attached, would you be willing to indemnify the
USG[1]? If you aren't, then you may wish to reconsider your arguments against
having another license/agreement put in place.
[1] I do not have the authority to negotiate on behalf of the USG, and these
are not negotiations. This is just a strawman argument to make everyone
**really think** about the issues facing the USG, and why we're being so
careful in what we're doing.
Thanks,
Cem Karan
"""
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