[License-review] [Was: Submission of OSET Public License for Approval] -- National Security and Public Policy (3.5B and 4)

Meeker, Heather J. hmeeker at omm.com
Tue Sep 15 02:34:06 UTC 2015

I am writing to answer the comment about exceptions for national security and public policy.  For reference, this comment relates to these two points in the OSET rationale:

§   3.5B Application of Additional Terms. We allowed additional conditions specifically to address national security or public interest concerns as well as state and federal procurement regulations. This is an important aspect of the unique target audience for this license – federal, state, county, and/or municipal elections administration agencies.
§ 4 Inability to Comply Due to Statute or Regulation.  We added national security and necessity of public interest to the list of circumstances due to which the licensee may be unable to comply with the terms of the license.
The issue raised by Gerv was:

> When you add "national security or necessity of public interest" into
> that mix, you are adding factors which are much woollier, and
> furthermore _are_ under the control of the licensee (in the case where
> it's a government using the software for their own elections) and do not
> have to be written down. Who defines "the public interest" or "national
> security"? The government does. Does it have to document its decisions
> and open them for scrutiny? No. Which means they get to ignore any bits
> of the license they don't like as long as they can come up with a
> "public interest" reason why obeying the license isn't a good idea.
> Therefore, I would say that this change is a significant one.
We do take the point that the general nature of these terms is potentially ambiguous.  However, even though national security and public policy interests are named generally here and not called out as particular statutes or regulations, the licensee would still ultimately be responsible for proof (presumably in the context of a defense against an enforcement claim by the copyright owner) for what legitimately constitutes national security or public policy interests.  There is jurisprudence on each of these terms of art, from different areas of the law.  So the question of what constitutes national security and public policy interests is not arbitrary, though it may not be specific.

Also please note that the OSET license actually does say that these exceptions must be written:  Both sections say, “You must: (a) comply with the terms of this License to the maximum extent possible; and (b) describe the limitations and the code they affect. Such description must be included in the notices required under Section 3.4. Except to the extent prohibited by statute or regulation, such description must be sufficiently detailed for a recipient of ordinary skill to be able to understand it.”

Speaking to the specific case in the comment, to the extent the end user is a government, and the government is not engaging in re-distribution, the conditions of the license are not applicable in any case.

--Heather Meeker

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