For Approval: TVA Open Source License

Lawrence Rosen lrosen at
Fri Sep 11 19:15:23 UTC 2009

Again, there may be some misunderstanding on the part of your attorneys at

While it is true that "copyright protection under this title" cannot be
claimed for any work of the United States Government, the remainder of that
provision (17 USC 105) suggests that TVA can receive and hold copyrights.
With respect to open source software as with any other work, you may not own
copyrights in the US in *your own* collective or derivative works, but you
may be *required by license* to distribute at least some of those works, and
any of its open source components, under their own open source copyright
licenses. They have not become public domain works simply because some
government employee distributed them.

The US Government may also have some copyrights that can be asserted in
other countries under the Berne Convention even though you can't assert them
in the United States under Title 17. I don't claim to know the answer to
this, but I do remember it being asserted by NASA's attorneys as
justification for their license even though they are US Government also.

You have suggested that the NASA license may not be a "free license"
according to certain "real or perceived" issues. Rest assured, the NASA
license is an approved open source license. Whether or not it is compatible
with the GPL is a matter for discussion on the FSF website, but is
irrelevant to your proposal here.

Now that you point out the indemnity clause that you have added, I'd like to
register opposition to that too. Why on earth would you need to add "US
Government employees" to "US Government"? Doesn't current US law already
deal with that relationship and provide indemnity for government employees
acting in the course and scope of their employment? The US Government can
protect its employees by law; you don't need a license provision. As for "US
Government contractors," they are already indemnified in the NASA license
section 4(B). 

I appreciate that you are reluctant to take this back to your attorneys.
They have already told you that "TVA can't adopt the standard NASA agreement
as-is". Please suggest to them that we are very tolerant of attorney
participation here to discuss open source licensing issues. One of those
issues, at least in my mind, is that we should NOT adopt licenses that fill
in licensing gaps that don't really exist. That will only confuse people
that come after us and make them wonder why we did what we did.


P.S. I recently worked with the US Department of Defense to establish a
Cooperative Research and Development Agreement (CRADA) by which US
Government-authored software entered the stream of commerce as a legitimate,
copyrighted open source project under a typical OSI-approved license. That
may be a licensing model you can emulate? I will copy John Weathersby of
OSSI, who specializes in helping government agencies participate in open

Lawrence Rosen
Rosenlaw & Einschlag, a technology law firm ( 
3001 King Ranch Road, Ukiah, CA 95482
Office: 707-485-1242    Cell: 707-478-8932
Apache Software Foundation, member and counsel ( 
Open Web Foundation, board member ( 
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] 
Sent: Friday, September 11, 2009 11:04 AM
To: license-review at
Subject: RE: For Approval: TVA Open Source License 

Thank you so much for your detailed and witty responses, hopefully the
following will clear up some of your questions:

1) TVA, as a government entity, cannot hold a copyright per Title 17 U.S.
Code. As such section 3B of the agreement states the following must appear
prominently in the software:

	No copyright is claimed pursuant to 17 USC § 105.  All Other Rights

Note that this differs from the NASA agreement which wants the copyright
statement listed as follows:

	Copyright 2009 United States Government as represented by the
Tennessee Valley Authority. No copyright claimed in the United States under
Title 17 U.S. Code. All Other Rights Reserved.

Our counsel chose the more concise copyright statement since no copyright
can be held by TVA and the NASA clause seems to insinuate some kind of
copyright when in fact there is none.

2)  Although Mr. Rosen is likely correct in his interpretation about section
3G (it's certainly convincing to me), the fact remains that there is
considerable documentation on the web about the NOSA not being "free
software" because of said clause. TVA wants to make sure that are no
prevailing issues, real or perceived, in the adoption of its software. As a
result, the text "believed to be Contributor's original creation and" has
been removed from section 3G of the original NOSA text.

These two items create the primary deviation from the NOSA. Additionally
there is a third difference in section 4B which attempts to further
indemnify not only TVA, but its contractors and employees. This is a
required addition from TVA counsel.

Given that these changes are important to TVA, we cannot adopt the standard
NASA agreement as-is. Regardless, I am very hopeful that this community can
give this agreement their stamp of approval at least as a "special purpose

Thanks again for your time and consideration of this agreement.

J. Ritchie Carroll

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