[License-discuss] Government licenses

Russell McOrmond russellmcormond at gmail.com
Thu May 30 12:51:55 UTC 2019

On Wed, May 29, 2019 at 3:55 PM Tzeng, Nigel H. <Nigel.Tzeng at jhuapl.edu>

> Heh, and I decided to leave the lists right before the discussion became
> interesting.

Well, we will need to agree to disagree.

* The value we are discussing is attaching the Open Source brand to this
software.  Without the OSI approval the software can continue to be
released, it just can't be called Open Source.  If that means some software
won't be released as US government policy suggests that software should be
released Open Source, then that is a matter of the USG agency not being
willing to do what is required to adhere to that policy.  It is not
something where the OSI is obligated to do things it (hopefully) sees as
harmful to the Open Source brand.

* https://opensource.org/trademark , and many institutions reference the
OSI license list.  Having software licensed in a way approved by the OSI
has value, otherwise there wouldn't be so much discussion about license

* I reject the notion that tangibles and intangibles are similar, and that
policy intended only for tangibles should be imposed on intangibles.  I
could quote a letter written by Thomas Jefferson to Isaac McPherson that
even in 1813 expressed just how different these things are, but we have
likely already all seen it.   The erosion of that understanding of these
differences has always been harmful to the FLOSS community, and much of the
advocacy work we do with governments is essentially trying to fight that

*  US copyright policy has a limitation to copyright for the US
government.  The intent is that the US government doesn't have that right
against US citizens.  A US government agency attempting to assert
copyright-like restrictions against the activities of US citizens in
contract law is clearly an attempt to circumvent the limitations and
exceptions of US copyright law.   This is not an accusation, but a
statement of fact.

*  Acceptance of the contractual terms in the GPL are triggered by carrying
out activities covered by copyright.  Meaning, you accepted the contract by
carrying out those activities which needed permission (either you accepted
it, or you infringed copyright).   This is entirely different than having a
contract apply to me (pretending for the moment I was a US citizen) which
"Fred" might have agreed to, but I did not do any activity that suggested I
agreed to the contract.  This is a misinterpretation on your part of the
transaction which happens with the GPL.

* Copyright, patents, trademarks, and other sui generis rights applied to
intangibles being mentioned within the same license agreement will become
increasingly common.  That doesn't mean that the agreement necessarily
tries to expand the scope of any of those rights, or attempt to imply
contractual agreement for a third parties carrying out an activity that
never required permission from any rightsholder for any type of statutory
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