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

[Bruce Perens]

On Wed, Jun 20, 2018 at 12:30 PM, Karan, Cem F CIV USARMY RDECOM ARL (US) <
cem.f.karan.civ at mail.mil> wrote:
>
> > Simply having the software be in the public domain and available in
> source-code form is sufficient to comply with the OSD, if you don't
> > attempt to add contractual terms.
>
> No, it doesn't.  Public domain covers copyright, but it doesn't cover
> patent and other intellectual property rights.  Downstream users should be
> confident that the USG has given them the rights to reuse the material that
> we're giving them.
>

So, give them the rights. This does not mean you have to restrict public
domain software. You just grant patent permissions as necessary. The "other
intellectual property rights" would be trademark. In general, trademark
licenses should be separate from the Open Source license.

Moreover, when others give the USG material to incorporate into USG
> projects, the USG needs to be confident that it has the rights to
> incorporate and redistribute the material.  This can be a truly serious
> problem if a patent troll gave the USG material, and then decided to sue
> both the USG and all downstream users for using the material without a
> license.
>

This is generally handled with a contributor license agreement. I am not
seeing that the license as stated protects you or anyone else from this
particular issue. If it does, please point out the text.


> Finally, there is still the issue of warranty and liability, which doesn't
> go away just because you put something in the public domain.


I agree it does not. However, a warranty disclaimer is a unilateral
declination in all of the Open Source licenses. We can't enforce it with
copyright terms.

  As an example, if I put a dangerously poorly made piece of equipment on a
> public playground I'm responsible for it if someone gets hurt, even if I
> donated it to the public domain.
>

Heartbleed is a better example.

There just haven't been warranty lawsuits regarding Open Source, even after
things like heartbleed. So, those unilateral warranty declinations seem to
be working.

Once again, you're missing the point.  There are two groups here, the USG,
> and private citizens.  The USG doesn't allow itself copyright within the
> US, but it can get patents and trademarks on material.  Downstream users
> need to be certain that the USG is licensing the rights to the downstream
> users so that they can use the material.  Moreover, the USG's position is
> that USG materials CAN be copyrighted outside of the US;


Do we have foreign case law where courts actually found material infringing
outside of the US when it was simultaneously in the public domain in the
US? Courts can and do consider the impact of foreign law.


> how are individuals outside of the US going to be sure that they are
> legally using the material the USG supplies unless there is a license to it?


I'm not saying you should not grant rights under a copyright regime.
Attempting to contractually control the public domain within the US,
though, is too problematical.

    Thanks

    Bruce
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