For Approval: TVA Open Source License

Fri Sep 11 16:22:09 UTC 2009

I'm not arguing against approving your license, since it obviously is open
source. But perhaps your attorneys are being a bit too cautious in their
reading of section 3(G) of the NASA license. 

   G. Each Contributor represents that that its Modification is believed
   to be Contributor's original creation and does not violate any
   existing agreements, regulations, statutes or rules, and further that
   Contributor has sufficient rights to grant the rights conveyed by this
   Agreement.

I don't read that section as requiring TVA to provide assurance that other
open source components that TVA incorporates into its Contributions be its
own "original creation." In today's software development environment, it is
usually the case that new software starts from some preexisting software.
Under copyright law, the collective or derivative work that is TVA's
Contribution is your original creation, even though every line of code in
that collective or derivative work may not be. 

Reading further in the same sentence of section 3(G), the NASA license
allows you to assert that you have "sufficient rights to grant the rights
conveyed by this Agreement." That's equivalent to what I've called, in other
licenses, a Warranty of Provenance. It isn't a promise of originality. 

Why then do you need a different license? If anything, the only change I
would recommend to the NASA License would be to change "and further" to "or"
in the third line above to make this point more obvious. But even that isn't
necessary if you recognize that your Contribution, with all its components,
is itself an original work that you can copyright and (assuming you have
been given sufficient rights by those who contributed to you) you can convey
your software to the world.

/Larry

Lawrence Rosen
Rosenlaw & Einschlag, a technology law firm (www.rosenlaw.com) 
3001 King Ranch Road, Ukiah, CA 95482
Office: 707-485-1242    Cell: 707-478-8932
Apache Software Foundation, member and counsel (www.apache.org) 
Open Web Foundation, board member (www.openwebfoundation.org) 
Stanford University, Instructor in Law
Author, Open Source Licensing: Software Freedom and Intellectual Property
Law (Prentice Hall 2004)

-----Original Message-----
From: Carroll, James Ritchie [mailto:jrcarrol at tva.gov] 
Sent: Friday, September 11, 2009 8:42 AM
To: license-review at opensource.org
Subject: For Approval: TVA Open Source License 

Hello,

	My name is James Ritchie Carroll; I work for the Tennessee
Valley Authority in Chattanooga, Tennessee as the manager of Operations
Architecture handling system development related to field device data
acquisition. The TVA is a federally owned corporation in the United
States created by congressional charter in May 1933 to provide
navigation, flood control, electricity generation, fertilizer
manufacturing, and economic development in the Tennessee Valley.
Currently TVA is the nation's largest public power company, providing
electric power to nearly 8.5 million customers in the Tennessee Valley.

My group has been developing software related to the smart-grid for
several years (see:
https://naspi.tva.com/PhasorMeasurementData/WebImages/TVA%20Phasor%20Dat
a%20Concentrator.png, http://www.naspi.org/pmu.stm,
http://phasors.pnl.gov/resources_tools.html,
http://ieeexplore.ieee.org/xpl/freeabs_all.jsp?arnumber=4596276) and we
have now decided to provide this software as open source. It is our hope
that this code will be used to support the development of the smart grid
and facilitate the Department of Energy (DOE) plans to accelerate use of
synchrophasors in the U.S. as part of the federal economic stimulus
programs. We believe this code will be an enabling technology for both
vendors and the electric power system industry worldwide and especially
within the U.S. as billions are invested to modernize the power grid
over the next several years. 

Given that we are a government agency about the only license agreement
that is suitable for us to use is the NASA Open Source Agreement;
however in the open source community this license has concerns related
to section G: "Each Contributor represents that its Modification is
believed to be Contributor's original creation and does not..." We also
have an issue with this clause given that we use some existing open
source code in our project. As a result we have worked with our Office
of General Council (OGC) and they have developed a new agreement based
on the NOSA that removes this wording. 

The new agreement is basically a minor modification of the NOSA
developed and reviewed by TVA OGC lawyers - however, it is different
enough that they have labeled it the "TVA Open Source Agreement". I have
a change-tracking-enabled Word version of this document that clearly
shows the differences from the NOSA if that is useful (see links below).
Given that we are very separate from NASA as a government agency means
that making modifications to the existing agreement is out of the
question; NASA will have no impetus to change an existing in-use
agreement to suit TVA especially since any other government agency can
use the agreement as-is already. Additionally, the OSI may feel that
this agreement is duplicative in nature; however, we feel that the new
agreement helps to solve the aforementioned long-standing issue with the
NOSA concerning original contributions that are not the contributor's
original creation (you are likely aware of the concerns in the open
source community about this:
http://en.wikipedia.org/wiki/NASA_Open_Source_Agreement). Ultimately I
will have little choice in the matter; the agreement for our source code
release has to approved by TVA OGC. As a result I would like to
officially submit this new license agreement for review by the OSI. It
is my hope that this agreement, or some form of it, can become a more
widely accepted agreement that can be used by government agencies.

We will be releasing the source code under the new agreement on October
7th, 2009 as a new open source project called the "TVA open Phasor Data
Concentrator" (openPDC) on the following site:
http://openpdc.codeplex.com/. If you would like access to this site
while it is in pre-release mode, please create an account on codeplex
and provide me your username; I will promptly add you to the site so you
can review. Please feel free to call me if you have any questions. I
will act as the proxy to the TVA OGC legal staff should you have any
questions related to the agreement.

License agreement downloads:

*	Word version:
o
https://naspi.tva.com/PhasorMeasurementData/Documents/TVA%20Open%20Sourc
e%20Agreement.doc
*	Word version with tracking from NOSA:
o
https://naspi.tva.com/PhasorMeasurementData/Documents/TVA%20Open%20Sourc
e%20Agreement%20with%20tracking%20changes%20from%20NOSA%20source.doc
*	Plain-text version:
o
https://naspi.tva.com/PhasorMeasurementData/Documents/TVA%20Open%20Sourc
e%20Agreement.txt

Submission Type:	For Approval
License Name:		TVA Open Source Agreement
License Category:	Special Purpose Licenses

Regards,
James Ritchie Carroll

E-mail:	jrcarrol at tva.gov
Work:	(423) 751-4165	
Cell:	(931) 308-2240