[License-discuss] Wrapping OSI licenses (UNCLASSIFIED)

Tzeng, Nigel H. Nigel.Tzeng at jhuapl.edu
Mon Feb 19 19:38:52 UTC 2018

On 2/19/18, 8:38 AM, "License-discuss on behalf of Ben Hilburn" <license-discuss-bounces at lists.opensource.org<mailto:license-discuss-bounces at lists.opensource.org> on behalf of bhilburn at gmail.com<mailto:bhilburn at gmail.com>> wrote:
Not sure I'm following your argument, here? If a party has been contracted by the government to write code, as part of contract negotiations the government can require that the code be delivered as FOSS. Especially with the recent changes in the NDAA, the government is clearly trying to push acquisition officers to be more knowledgeable about these things.
My point was that there may be no contractor code at all and therefore there is no code under any sort of FOSS license, just public domain.  Depending on the existence of contractor developed code under a FOSS license to make the entire code base FOSS doesn’t work in this case.

The DDS policies posted online don't discuss patents much, aside from a bit in the license selection portion, "Our suggestions for permissive licenses are MIT, ISC, or BSD-3 unless patents are potentially involved in which case we suggest Apache 2.0 although the others work too." I have no idea how intra-government but inter-org patent licensing works, though, so I don't have anything to add to this piece of the discussion. It's worth noting, though, that the broader open-source community has long dealt with the same question, "what if someone unknowingly implements a patent and publishes it under the Apache license," problem that you raise here; I don't think it's unique.

The use of Apache 2.0 is problematic because it IS a fairly unique problem.  The issue is the USG as a single entity implies that a patent grant under Apache 2.0 provided by the ARL gives that patent away even if it was not created by the ARL but some other part of the federal government.

Your scenario is different where the developers implements a patent someone else owns.  They don’t own the patent so the patent grant under Apache is meaningless.

The only place that the broader open-source community has dealt with this issue is in the educational world which is why we have ECL v2.  Which is Apache with a patent grant only for those patents owned by the authors of the code.
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