[License-discuss] Government licenses

Russell McOrmond russellmcormond at gmail.com
Wed May 29 00:51:46 UTC 2019

On Tue, May 28, 2019 at 3:33 PM VanL <van.lindberg at gmail.com> wrote:

> 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. This resulted in the
> government needing to pay for many incompatible proprietary forks of code
> that was 95% based upon the previous public domain code released by the
> government itself.

This is a case of a government agency trying to (ab)use contract law to fix
a flaw in government procurement policy.

The work-around they are trying to use, of having contracts for the
distribution of creative works circumvent limitations and exceptions to
copyright, should be clearly understood as more harmful to the FLOSS
community than any amount of software released by any particular government
could be of benefit.

I have a stake in this issue as someone who has spent decades of his life
concerned with how governments regulate software, and how what I consider
to be inappropriate government regulation (for instance, excessive control
granted to software authors over the rights of hardware owners) harms
technology owners and users.  (I sat in on, life tweeted, and summarised
every committee meeting for Copyright Bill C-32 / C-11 http://c11.ca , was
a witness at committee, coordinated many submissions to the consultation,
coordinated petitions, presented at conferences, etc, etc)

I'm also the private sector co-founder of http://www.goslingcommunity.org/ ,
which started with 4 people (3 employees of different branches of the
Government of Canada, and myself as a self-employed contractor at the
time).  GOSLING grew to many more people, and while the majority focus was
on how the Government of Canada used, created and distributed FLOSS, my
focus was always on how provincial and federal governments regulated
software (copyright, paracopyright, software patents, right-to-repair and
related legislation).

It is true that governments have unique aspects that must be recognised. To
me this suggests there is a stronger duty on government employees to work
within government to ensure that the right regulatory framework is moved
forward, regardless of what department they happen to be from.  The
existence of a problem in government procurement policy that allows the
government acquisition of proprietary derivatives of GOSS software should
never be used as a justification to create new problems by promoting ways
to circumvent limitations and exceptions to software copyright.  It should
be a reason for those government employees to work within their domestic
government to fix the procurement policies, and to help ensure that such
circumvention of limitations/exceptions to copyright is prohibited by law.

My strongest hope is that licenses which might have the effect of
circumventing limitations/exceptions to copyright, or expanding copyright
(to interfaces, etc) should be rejected.   The process needs to be clear,
the outcomes documented, but they should still be rejected.

There are licenses which the OSI has already approved which I hope they
will take a second-look at.   Many countries have limitations on copyright
specifically to allow private modification of software for the purpose of
creating compatibility.   The EU's 1991 directive on computer software
specifically excluded interfaces from copyrightability.  License agreements
which seek to circumvent existing limitations/exceptions and/or expand the
scope of copyright, should be rejected (including any existing approval
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