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

[Karl Fogel]

"Geurts, Bryan A. (GSFC-1401)" <bryan.a.geurts at nasa.gov> 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).  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.  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.

If that restriction ([1]) exists in statute already ([2]), then is it
necessary for the license itself to reiterate that?

If the license would otherwise imply some kind of endorsement
permission, I could see why it would be necessary for the license to
explicitly disclaim that such a permission is granted.  But there is no
such implicit permission (as far as I can see) in the license anyway,
and, at least in the U.S, there's an actual law saying that one
*doesn't* have such permission, so...

In other words, is this truly a *requirement* imposed by NASA's charter
statute?  NASA actually can't release software under a license that
doesn't have such a provision?  (When NASA engineers, or NASA
contractors, release software under the GPL, due to dependency library
requirements, that license doesn't have this requirement, after all.)

In general, I worry about building trademark-law-type provisions into
licenses that are really about copyright -- that is, about use,
redistribution, and modification.  (I'm not a lawyer, however, and don't
have the expertise that you and Richard and Luis have; it may be that
the answer to my question above is obvious to all you.)

Best,
-Karl

[1] 3F in the proposed license text, for reference: 

    "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."

[2] 51 USC §20141(a), also for reference:

    http://www.gpo.gov/fdsys/pkg/USCODE-2010-title51/html/USCODE-2010-title51-subtitleII-chap201-subchapIII-sec20141.htm