[License-review] Some more comments on NOSA 2.0

Richard Fontana fontana at opensource.org
Wed Mar 23 21:04:28 UTC 2016


This is based on a draft message I wrote some time ago but never sent
to license-review because I hadn't completed it. If it reads a bit
oddly I think it is because I was intending to proceed with my effort
to go through NOSA 2.0 in sequence, here addressing section 2. (I do
not remember why I passed over 2B -- either I saw nothing worthy of
comment on it or I meant to examine whether there was a problem in 2B
comparable to the problem I seemed to have detected in 2C.) I'm just
sending it now with light editing and will try to elaborate on it
further, at least to the extent there is interest.

There may be some inconsistency in my tentative conclusion at the end
and what I've said recently on this list. But the basic point is that
I do not know how to interpret the NOSA patent license grant and I
believe one interpretation raises a difficult policy issue for OSI.

I ask NASA to say whether I am reading the license correctly or
not. If I'm not I nonetheless think the license has to be revised to
address this significant lack of clarity. If I *am* then we need to
address the OSD conformance issue. I am not sure there is much point
to addressing other problems with NOSA 2.0 before this one is
resolved.


Here's section 2 of NOSA 2.0:

= begin =

2. GRANT OF RIGHTS YOU RECEIVE (FROM UPSTREAM CONTRIBUTORS) ALONG WITH
YOUR GRANT OF RIGHTS AND OBLIGATIONS IF YOU MAKE DERIVATIVE WORKS OF
OR REDISTRIBUTE THE SUBJECT SOFTWARE (TO DOWNSTREAM RECIPIENTS)

A. Subject to, and, so long as You comply with, the terms and
conditions of this Agreement, the Government hereby grants permission
to You to use civil servant authored U.S. Government Work (17 U.S.C. §
105) portions of the Subject Software, if any, in the United States.

B. Under Non Patent Rights/Copyright License: Subject to, and, so long
as You comply with, the terms and conditions of this Agreement, each
Contributor hereby grants to You (with respect to the Subject Software
and its Contributions to or Derivative Works of the Subject Software)
and You hereby grant to each recipient (with respect to Your
Contributions to and Derivative Works of the Subject Software, as
defined in Paragraphs 1.B and 1.C) a non-exclusive, worldwide,
royalty-free, irrevocable (except as stated in Paragraphs 3.J and 5.A)
license to use, reproduce, modify, redistribute, prepare Derivative
Works of, publicly display, publicly perform, and sublicense the
Subject Software.

C. Under Patent Rights: Subject to, and, so long as You comply with,
the terms and conditions of this Agreement, each Contributor hereby
grants to You (with respect to the Subject Software and its
Contributions to or Derivative Works of the Subject Software) and You
grant to each recipient (with respect to Your Contributions to and
Derivative Works of the Subject Software, as defined in Paragraphs 1.B
and 1.C) a non-exclusive, worldwide, royalty-free, irrevocable (except
as stated in Paragraphs 3.J and 5.A) license with respect to its
Covered Patents to make, have made, use, redistribute, reproduce,
sell, offer to sell, import, sublicense and otherwise transfer the
Subject Software.

= end =

Here's what 17 USC 105 says:

 Copyright protection under this title is not available for any work
 of the United States Government, but the United States Government is
 not precluded from receiving and holding copyrights transferred to it
 by assignment, bequest, or otherwise.

Thus I believe the intent of NOSA 2.0 2A is to say "here's software
that is by statute material we can't restrict within the US as a
matter of copyright, and you can use it subject to the terms of this
agreement".

Regarding 2C, I contend that given the way 'Covered Patents' is
defined, the Government Agency has no 'Covered Patents' reading on
'Original Software' by definition. Therefore that Government Agency is
never subject to 2C with respect to 'Original Software'.  So, for
example, if NASA releases some new code under NOSA 2.0, NASA is not
granting any patent licenses under 2C. Thus it looks like NASA is
creating a license that results in it (and sibling federal agencies)
granting fewer patent licenses than entities in the private sector who
might be NOSA 2.0 licensees. 

One possibility is that this feature was not intended, and is rather
the understandable result of the one-sided drafting of an unusually
complex (for open source purposes) license. Or perhaps I am giving the
license an unreasonable or unjustified reading. But it would be easy
to believe that it is in NASA's interests to grant narrower rather
than broader patent licenses through a mechanism such as this license. 

Assuming my reading of the license is correct, whether there is an OSD
problem here, I'm not sure, but I'm inclined to think so. I won't say
there is no OSI precedent for licenses that reserve special privileges
for classes of initial licensors with respect to copyright and/or
patent license grants,[1] but I am skeptical that any such licenses
would be approved by OSI today, and there's probably a good argument
that such licenses are inconsistent with the anti-discrimination
planks of the OSD. If this was intentional, it is disturbing to me
because this point escaped the attention of anyone during the earlier
discussion of this license and NASA itself has not called attention to
it.

Richard

[1]I have intentionally avoided looking at NOSA 1.3 when considering
NOSA 2.0, so I have not attempted to see whether this feature is
present in the earlier version. 





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