[License-discuss] [Non-DoD Source] Re: Wrapping OSI licenses (UNCLASSIFIED)

Tue Feb 20 15:39:58 UTC 2018

CLASSIFICATION: UNCLASSIFIED

I _really should_ refrain from starting an interesting discussion before going away for a long weekend... I'll combine my remarks to all the good comments I've seen into this post.

Thorsten, you're right that the US Government's (USG) position is that USG works have all the copyright protections offered under the laws of the jurisdiction that they're in.  And you're right that license grants are possible.  However, it creates an unlevel playing field; the same code has different protections depending on where it is in the world.  In the US, the license may be considered to be null and void because the copyright clauses can't be enforced, but in the rest of the world that might not be true.  I'm trying to avoid that situation by developing something that handles all these issues transparently.

Marc, I know some of the people at DDS, and we're still all trying to figure out how to handle various bits.  Also, at ARL we have to be careful about developer certificates of origin (DCOs); if the USG or downstream users get sued, we need to be able to provide evidence in court about the material that was contributed.  That is why ARL is going for contributor license agreements (CLAs) instead of DCOs; ARL's lawyers think they stand up in court better.  See my comments towards the bottom of this email for more info.

Tom, are you still working on the wrapping license thing?  If so, can we set up a meeting?  I want to make sure that we're not working at cross purposes here.  Email me off-list.

Nigel, you're 100% correct about the contractor issues.  We're aware of the issues, and will negotiate with our contractors to release material under a FOSS license on those projects that we know are going to be Open Sourced at the project's outset.  For projects that have already been developed that we want to Open Source, we need to do an internal scrub to see if we have the rights, and if we don't, then try to negotiate rights for what we need.  That is _not_ a quick or easy process, which is part of why ARL's Open Source efforts have been so, so slow (the other part is that my 'brilliant ideas' for how to write a nimble policy fell flat. I'm in the process of rewriting the policy to 2.0 to make it very, very formulaic and checklist oriented; I hope that'll make it easier for us to get OSS out the door more easily)

Comments on IP rights: There are a lot of IP rights, and software touches on all of them.  Copyright, patent, trademark, and trade secret laws can all apply to software.  If you don't get all these right when releasing various material, then not only are you exposed to litigation, you can expose downstream users to litigation.  Even if the USG isn't at fault for exposing downstream users to various litigation, it would still be really embarrassing for that to happen.  That is part of why we're being so careful in what we're doing; to protect the USG's reputation, and to help ensure that when a downstream user gets software from us that they can know reasonable efforts have been made to license the material properly.

Why are we working so hard on developing better licenses/wrappers in the first place: where there is money, someone will find a way to make a profit.  In some cases this is done ethically, in other cases, not so much.  As an example, consider the litigation surrounding RAMBUS and its membership on the JEDEC standards committee (https://en.wikipedia.org/wiki/Rambus#Lawsuits).  I personally don't want to see anything like that happen either to the USG, or to downstream users.  If a lawsuit hits the USG, then the knee-jerk reaction will probably be to shut down OSS efforts throughout the USG.  If it happens to our downstream users, then someone will get embarrassed politically, and the reaction will be slower, but much the same.  To keep USG OSS going for the long haul, we have to be very, very careful in the short term.  Once there is a culture of OSS in the USG in place, then it will be easier to keep the ball rolling, even if litigation hits the USG.

Thanks,
Cem Karan

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Other than quoted laws, regulations or officially published policies, the views expressed herein are not intended to be used as an authoritative state of the law nor do they reflect official positions of the U.S. Army, Department of Defense or U.S. Government.

CLASSIFICATION: UNCLASSIFIED