[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]]

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

> -----Original Message-----
> From: License-review [mailto:license-review-bounces at lists.opensource.org] On Behalf Of Smith, McCoy
> Sent: Wednesday, June 20, 2018 11:35 AM
> To: License submissions for OSI review <license-review at lists.opensource.org>
> Subject: [Non-DoD Source] Re: [License-review] NOSA 2.0 and Government licensing [was: moving to an issue tracker [was Re: Some
> notes for license submitters]]>
> 
> >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.
> 
> I'm curious what sort of harm the government or downstream users would suffer in your scenario that would be addressable in
> indemnity.  Let's say OSI decides to grant USG such an indemnity.  Under what conditions can the USG tender indemnity, and against
> what USG losses would OSI be required to pay?

That test was just a theoretical test; AFAIK, the USG is fully self-insured, so I don't think it would accept such an offer, even if it was made (this is where I put in my own disclaimers about not being a lawyer, and not representing the USG; in short, read my sig line).

But, to answer your question, pretend that a patent troll contributes code to a USG project with the intention of suing the USG (cause that's where the money is), and anyone downstream that looks like they have money.  Whether or not the suit has merit is beside the point; it will need to be defended.  If the USG accepted the OSI tendering indemnity, the then OSI would be on the hook for defending against the suit, and paying for any damages that are awarded if the suit was lost.  The same could be said for warranty and liability claims, and copyright infringement claims.   If the courts uphold the license despite the lack of copyright, then that won't be a problem, but if they strike down the license because of the lack of copyright, then there is a real problem, which OSI has to deal with.

Just to be clear, I'm NOT negotiating with OSI on this, I only intended the test to make everyone really *think* about the problems involved.  If you really believe that the USG can use OSI-approved licenses as-is, even though most USG works don't have copyright attached, then you wouldn't mind taking on the indemnity.  However, if you have any qualms, any concerns at all about the copyright issues that I've raised ad-nauseam, then you won't want to accept the indemnity.  In which case you're acknowledging that there is a problem here for works that don't have copyright attached, and that a better solution needs to be developed.

Thanks,
Cem Karan

---
Other than quoted laws, regulations or officially published policies, the views expressed herein are not intended to be used as an authoritative state of the law nor do they reflect official positions of the U.S. Army, Department of Defense or U.S. Government.