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

John Cowan cowan at mercury.ccil.org
Thu Sep 17 17:12:11 UTC 2015

Josh Berkus scripsit:

> But governments, and favored contractors with complaint
> legislators, or even just corrupt beaurocrats, get to use my
> contribution *without* the restrictions which I must obey.  

They already do.  The controlling law for suing the U.S. government
on copyright claims is 28 U.S. Code § 1498 (b), which is online at
<https://www.law.cornell.edu/uscode/text/28/1498>.  The most you can get
is compensation for actual damages, which in the case of contributions
to open-source software probably amount to $0, or alternatively minimum
statutory damages of $750 per work.  The Court of Claims can elevate
this to $30,000 if they want to, but how likely is that?

Injunctive relief is simply not available, nor are the $150,000 special
damages for willful infringement, nor are attorney's fees.  As William
Patry puts it at
"In short, monetary recovery is slight, injunctive relief and attorney's
fees impossible; litigation against the federal government is not an
attractive option."  Furthermore, foreigners have no rights at all under
this statute.

Suing state governments for copyright violations is completely impossible
thanks to sovereign immunity.  Foreign governments likewise.

> Due to this provision, I see the OSET license as presented as being in
> violation of the OSD, and would not currently vote to certify it.

You are fiercely holding the barn door shut when the back wall is down
and the horse is cantering down the road singing "Don't Fence Me In".
I advise you (IANAL, TINLA, but not UPL either) to let it go.

John Cowan          http://www.ccil.org/~cowan        cowan at ccil.org
        Is it not written, "That which is written, is written"?

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