[License-review] License Committee Report - for board meeting of 2013-11-06 [NASA, EUPL, and Tidepool]

[Geurts, Bryan A. (GSFC-1401)]

With apologies, another late response.  Please see below.

Bryan A. Geurts
Chief Patent Counsel
NASA Goddard Space Flight Center
Code 140.1, 8800 Greenbelt Road
Greenbelt, MD 20771
Phone:  301-286-7352
Fax:  301-286-9502

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-----Original Message-----
From: Richard Fontana [mailto:fontana at sharpeleven.org] 
Sent: Wednesday, June 25, 2014 3:30 PM
Cc: Geurts, Bryan A. (GSFC-1401); License submissions for OSI review; luis at tieguy.org
Subject: Re: [License-review] License Committee Report - for board meeting of 2013-11-06 [NASA, EUPL, and Tidepool]

 
Regarding the submittted NASA Open Source Agreement 2.0 http://projects.opensource.org/pipermail/license-review/attachments/20130607/0d342a59/attachment-0001.txt


NOSA 2.0 section 3F says:

  F. You may not make any representation in the Subject Software or in
  any promotional, advertising or other material that may be construed
  as an endorsement by Government Agency or by any other Contributor or
  recipient of any product or service provided by You, or that may seek
  to obtain commercial advantage of Government Agency's or any other
  recipient’s participation in this Agreement

I wrote on 31 October 2013:

> 3F: What if non-NASA Contributor A or non-NASA recipient B, allow me 
> to say that they endorse a product or service provided by me: am I 
> violating NASA's license? As drafted this seems to be possible under 
> 3F, yet it would be an absurd and unfair result.

Bryan Geurts writes:

> Paragraph 3F is a requirement imposed by NASA's charter Statute, the 
> Space Act, where it states:  "No person . . . may knowingly use the 
> words "National Aeronautics and Space Administration" or the letters 
> "NASA", or any combination, variation, or colorable imitation of those 
> words or letters either alone or in combination with other words or 
> letters . . . in connection with any product or service being offered 
> or made available to the public in a manner reasonably calculated to 
> convey the impression that the product or service has the 
> authorization, support, sponsorship, or endorsement of, or the 
> development, use, or manufacture by or on behalf of the Administration 
> which does not, in fact, exist."  See 51 USC §20141(a).

Right. But I don't see where in that provision it says that NASA is required or expected to enforce it in contracts or licenses authored by NASA -- to which NASA might not even be a party, perhaps not involving entities or acts within the US. Also subsection (b) already creates a public remedy to police conduct that violates (a).

***NASA has always and consistently required that this clause be in all of its agreements.  For example, it is required in all NASA commercial patent and/or copyright licenses and all Space Act Agreements.  It is a hard and fast requirement that we cannot alter.  In answer to the scenario you posed above, the prohibition against endorsement applies only to NASA.  Others are free to negotiate endorsements to their heart's content, but cannot imply that NASA endorses their products or services.

> Other federal agencies have a similar restriction in their charter 
> statutes.  This same restriction is found in NOSA 1.3, Paragraph 3E.  
> Since the NOSA is designed to govern software created by an agency 
> with such a restriction against endorsement, such a prohibition is 
> required.

Required by what? 51 USC 20141(a) doesn't say "all agreements that NASA might play some role in drafting must be sure to contain a contractual prohibition against the conduct that is prohibited in this provision" (which NASA might not even be able to enforce). It can't mean that all licenses to which NASA is a party must contain such a prohibition. 

***Yes, it does

51 USC 20141(a) appears to be a prohibition against acts by persons other than NASA, not a prohibition against action or non-action by NASA.

*** That's correct.  Does it make a difference?

> If you or any other non-government agency entity wishes to endorse a 
> product or service not related to a government agency, you are free to 
> do so.  I don't see how this restriction could be construed or 
> interpreted any differently.

Because it isn't limited to "Government Agency". It says "by Government Agency or by any other Contributor" and "... commercial advantage of Government Agency's or any other recipient’s participation". 

**Perhaps one solution is to amend the language to remove "or by any other Contributor or recipient" and "or any other recipient’s".  That much we can do.

 - Richard

***Bryan