[License-discuss] Government licenses

[Henrik Ingo]

On Tue, May 28, 2019 at 11:58 PM Brendan Hickey
<brendan.m.hickey at gmail.com> wrote:
> On Tue, May 28, 2019, 15:42 Smith, McCoy <mccoy.smith at intel.com> wrote:
>>
>> >>From: License-discuss [mailto:license-discuss-bounces at lists.opensource.org] On Behalf Of VanL
>> >>Sent: Tuesday, May 28, 2019 12:32 PM
>> >>To: license-discuss at lists.opensource.org
>> >>Subject: [License-discuss] Government licenses
>>
>>
>>
>>
>>
>> >>As he described it, goverment-written code is all public domain. Unfortunately, the predominant effect of that public domain status for the code was that government contractors would take the code, make trivial modifications, and sell it back to >>the government under a proprietary license - which they were within their rights to do.
>>
>>
>>
>> But if it’s public domain, the government has no right to dictate how those modifications are subsequently licensed.  That’s sort of the whole point of public domain.
>
>
> It's far more confusing than that. Works by the United States government are in the public domain only in the United States.
>
> "The prohibition on copyright protection for United States Government works is not intended to have any effect on protection of these works abroad. Works of the governments of most other countries are copyrighted. There are no valid policy reasons for denying such protection to United States Government works in foreign countries, or for precluding the Government from making licenses for the use of its works abroad."
>
> https://en.wikisource.org/wiki/Copyright_Law_Revision_(House_Report_No._94-1476)

Other threads have recently lamented on the "unpredictability" of the
license review process, due to the fact that some licenses that may
otherwise be OSD compliant, were rejected due to language that was
against policy interests of the open source community. While that can
happen in many ways, this question of US government open source is a
great specific example. Since it is not clear even from this thread,
let alone others, that opposing sides fully understand each others, I
will here try to bridge that gap and outline how the policy question
trumps other viewpoints (for license review).

(Note that elsewhere in this thread it was already suggested that
government projects could add a permissive license to software that
may or may not be copyrighted at all. That is an easy practical
solution to the question of releasing code. The question whether the
code is copyrighted in the first place otoh is a significant, high
stakes policy question.)

1. US Copyright Act § 105 says:  "Copyright protection under this
title is not available for any work of the United States Government,
but the United States Government is not precluded from receiving and
holding copyrights transferred to it by assignment, bequest, or
otherwise."

2. To a layman open source developer the above seems to say that code
created by US government can never be copyrighted. BUT, government
lawyers feel that is unnecessarily generous, so they are pushing a
narrower interpretation, where such software is only public domain
inside the US.

3. An easy mistake to make here is to think that since government
lawyers say this, it is the correct interpretation of the law. This is
of course not so. The government lawyers have merely presented a
theory that is beneficial to their employer, much like an Oracle or
Microsoft lawyer would.

And it is especially worth noting that actually testing this theory in
a court decision is probably not what the US government wants to do.
It is not at all obvious their theory will win in a foreign court. A
much wiser strategy is to just keep asserting this theory, until
people agree and act accordingly.*

4. On the other side the open source community continues to act as if
government software is truly public domain. It can be used in other
open source projects. Sometimes unreleased government code has been
liberated with tricks such as using the Freedom of Information Act. As
proponents of the government side often point out, the value of all
software at stake is 60 billion per year! If the government's theory
prevails, then this software is no longer open source!

5. Which side is right or wrong is rather irrelevant. What matters is
whether we can in practice continue to use such code in open source
software. Currently we can and do. OSI must of course defend that
status. Meanwhile government lawyers are doing their job, trying to
get OSI to agree to their theory in #2.

Note that whether some NASA projects could be released as open source
is a drop in the ocean compared to what's actually at stake (#4). It
would be a horribly irresponsible trade for the OSI to make.


*) Note that FSF's promotion of the GPL has worked exactly the same
way. Initially Stallman's idea of copyleft was dismissed as totally
absurd. But free software hackers liked it and used it anyway. Then we
had decades of "the GPL has never been tested in court". Today it has,
but of course many use cases and exact boundaries haven't. Still, the
copyleft movement is thriving, regardless of courts.

I hope this helps to explain how and why OSI has to consider policy
aspects in its decisions, and how this comes in addition to what the
OSD says or even what the law says. Good lawyers consider ways of
defending their clients' interests beyond what just the law says (e.g.
lobbying, PR...) and the government is doing exactly that. The OSI
needs to remain vigilant and defend the open source community's
interests across the entire playing field.

Also I hoped to explain how none of this should be unpredictable to a
participant familiar with the open source community's values and
goals.

henrik
-- 
henrik.ingo at avoinelama.fi
+358-40-5697354        skype: henrik.ingo            irc: hingo
www.openlife.cc

My LinkedIn profile: http://fi.linkedin.com/pub/henrik-ingo/3/232/8a7