[License-discuss] Wrapping OSI licenses (UNCLASSIFIED)

[Tzeng, Nigel H.]

From: License-discuss <license-discuss-bounces at lists.opensource.org> on behalf of Marc Jones <marc at joneslaw.io>

DDS does not have a "meta-license" per se, but they did adopt a licensing strategy that seems to be pretty sensible and does not require creating a new license or dealing with contract law. DDS is taking the position that within the U.S. its code bases should be treated as FOSS since they are intentionally taking contributions from contractors only under FOSS licenses. Once that code becomes sufficiently intertwined with the government created code compliance with the license is essentially mandatory for the whole code base (even if the license does not technically apply to the government created portions). And outside of the U.S., DDS is taking the position that the government does have copyright and therefore can directly release the code under a FOSS license. I do not know if they explicitly have a strategy of incorporating third party FOSS libraries into their code, but that is another way of incorporating FOSS license obligations into a otherwise public domain code base. In many ways they are just doing the opposite of what SQLite is doing in its effort to put its code in the public domain.(https://sqlite.org/copyright.html).

Not every contractor is going to allow their work to be open sourced without a cost…especially if part of the code base was developed using internal funds.  Under DFARS 252.227-7014 the government only has government purpose rights for software developed with mixed funding and restricted rights for software developed completely with private funding.  In the case of a CRADA the government usually only retains a non-exclusive, nontransferable, irrevocable license to the IP ((15 U.S.C. 3710a (b) (1) (A))).

So, it’s not as simple as declaring that any contractor development on a GOSS project must only be under a specified FOSS license listed in the CLA/DCO.  A lot of the time there isn’t any contractor code in the codebase anyway.  The government developers may be responsible for a complete CSC or CSCI of a larger system.  For example, a component simulator or a protocol library.  It is probably better for NASA to have it released under NOSA rather than PD.

Any comprehensive GOSS strategy has to take into account these cases as well as the desire of federal agencies to be able to commercially license IP:

https://www.nasa.gov/ames-partnerships/opportunities/licensing
https://www.arl.army.mil/www/default.cfm?article=2891
https://techlinkcenter.org
https://flcbusiness.federallabs.org/#/laboratory/1407/category/tech/13271

There is also significant issue with blanket patent grants under most FOSS licenses that has to be addressed under a federal government open source agreement.  An ARL developed software package that unknowingly implements a NRL software patent and released under Apache is an issue best considered and mitigated before it happens rather than after.  A federal open source agreement probably needs the same sort of patent language as ECL V2 vs that of vanilla Apache.
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