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

[Lawrence Rosen]

Josh Berkus wrote:
> 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.

John Cowan responded:
> They already do.  

We shouldn't want them to do that for elections software and hardware, and to democracy. That is simply too important an application to allow the government (or its bureaucrats) to do whatever they want with this.

I hope that John Cowan's "horse is cantering down the road..." analogy can be challenged. I'm not ready to concede to Patry's gloomy blog posting without hearing from others here too.

What do you suggest we do to enforce our copyright licenses against government agencies -- in accordance with laws and official regulations, but not subject to whim or corruption? Should we just give up and acknowledge this awful result in plain words in the OSET license?

/Larry


-----Original Message-----
From: John Cowan [mailto:cowan at mercury.ccil.org] 
Sent: Thursday, September 17, 2015 10:12 AM
To: License submissions for OSI review <license-review at opensource.org>
Subject: Re: [License-review] [Was: Submission of OSET Public License for Approval] -- National Security and Public Policy (3.5B and 4)

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
<http://williampatry.blogspot.com/2005/05/us-government-and-copyright.html>:
"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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