[License-discuss] U.S. Army Research Laboratory Open Source License (ARL OSL) Version 0.4.1

[Lawrence Rosen]

Cem Karan wrote:

. . . the truly serious issue is severability  <https://en.wikipedia.org/wiki/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.  

 

Apache-licensed software also may (and frequently does) contain public domain components. Are you suggesting that "severability" is a potential problem with Apache software?

 

The US government isn't special.

 

/Larry

 

 

-----Original Message-----
From: License-discuss [mailto:license-discuss-bounces at opensource.org] On Behalf Of Karan, Cem F CIV USARMY RDECOM ARL (US)
Sent: Monday, February 27, 2017 9:01 AM
To: license-discuss at opensource.org
Subject: [License-discuss] U.S. Army Research Laboratory Open Source License (ARL OSL) Version 0.4.1

 

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> 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> 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> 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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