[License-review] NOSA 2.0 and Government licensing [was: moving to an issue tracker [was Re: Some notes for license submitters]]

[Karan, Cem F CIV USARMY RDECOM ARL (US)]

> -----Original Message-----
> From: License-review [mailto:license-review-bounces at lists.opensource.org] On Behalf Of Bruce Perens
> Sent: Tuesday, June 19, 2018 9:03 PM
> To: License submissions for OSI review <license-review at lists.opensource.org>
> Subject: [Non-DoD Source] Re: [License-review] moving to an issue tracker [was Re: Some notes for license submitters]
> 
> Allison,
> 
> The biggest problem here is not that OSI is slow to approve licenses, that they provide insufficient feedback, or that they are using the
> wrong software.
> 
> It's a greater problem that OSI continues to approve licenses on a regular basis, twenty years after the process started.
> 
> There aren't that many actually useful variations on the licenses that actually pass the OSD. There are actually only three useful
> licenses, a gift-style, a sharing-with-rules-style, and something in between. Given Affero and GPL3 terms on those three, essentially
> all purposes for Open Source can be carried out. All else is embellishment.
> 
> What we are seeing now are licenses that satisfy a particular attorney. These are often introduced as being necessary for the specific
> needs of the venue (Europe, for example) or a particular organization (NASA, focusing on restrictions on the public domain). It's
> arguable that these licenses are more useful than existing well-tested ones, even for those organizations. For example, I don't see
> how NASA can really benefit from imposing terms upon public-domain works or making itself a secondary beneficiary of licenses
> executed by others.
> 
> The license reviewers aren't waiting to be surprised by some worthy innovation in Open Source licensing. No such thing is coming by.
> They are mainly working to make sure that OSI understands when a license should be rejected, and why.
> 
> If OSI were to conclude that licenses, at this point, should be approved only when there are compelling reasons to do so, the
> community would benefit.
> 
>     Thanks
> 
>     Bruce

In terms of the NOSA 2.0 license, the goal is to support the OSD despite not having copyright attached to most US government works within US jurisdiction.  I've gone on at length about this in the past, but the issue of using copyright-based licenses on material that doesn't have copyright attached could open up both the US Government AND any downstream users to litigation due to severability[1].

So, let's put this to the real test; would OSI (or anyone else) be willing to indemnify the US Government, and all downstream users, against any OSI-approved license being declared fully null and void solely because the license had copyright clauses in it that were declared invalid because the covered work didn't have copyright attached?  If you won't provide such indemnification (or find an insurance company that would be willing to provide such indemnification), then you've already answered the question of whether or not the USG can use copyright-based licenses.  Everything else is just posturing.

At least for ARL, we'd prefer to use the regular OSI-approved licenses; it would solve a lot of headaches for us.  However, our interpretation is that doing so would not only expose the USG to legal issues, it would also expose our downstream users to legal issues.  And I personally am not willing to poison Open Source in that way, even by accident.

Given all this, yes, there ARE additional reasons for approving new licenses beyond what you've listed above.  Help the community solve these problems so that more people can fit in the Open Source tent.

[1] https://en.wikipedia.org/wiki/Severability


Thanks,
Cem Karan

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