[License-review] Some more comments on NOSA 2.0

Richard Fontana fontana at opensource.org
Sun Mar 27 03:55:58 UTC 2016

Note: NOSA 2.0 as submitted is at:
(should have posted that upthread)

On Sat, Mar 26, 2016 at 01:59:22PM +0700, Love Nystrom wrote:
> A penny to the pot...
> On 2016-03-24 04.04, Richard Fontana wrote:
> >2 ...
> >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.
> "in the United States" ... That can't be right, can it?
> Should export restrictions, if any, really be applicable to open source
> software ?
> That would make it "half open" at best.
> IMHO, deleting that particular regional limitation would be better.

I don't believe this has to do with export restrictions nor is it a
regional limitation. It has to be read in connection with 2B:

  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.

Under 17 USC 105, referenced in 2A, "Copyright protection under this
title is not available for any work of the United States Government",
i.e. US government works (work for hire by US government civil
servants) is by statute in the public domain as to copyright, but
qualify for copyright in other jurisdictions.

The apparent position of NASA (and, I know from past experience, some
lawyers at other federal agencies) is that 17 USC 105 is effectively a
kind of mandate that the agency not enter into any sort of license
agreement which could possibly be read as suggesting that the federal
agency could claim copyright on a US civil servant work inside the
United States, and which does not therefore explicitly carve out US
civil servant works from any sort of (intra-US) copyright license


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