[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]]

Wed Jun 20 20:44:23 UTC 2018

> -----Original Message-----
> From: License-review [mailto:license-review-bounces at lists.opensource.org] On Behalf Of Bruce Perens
> Sent: Wednesday, June 20, 2018 2:12 PM
> 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]]
> 
> On Wed, Jun 20, 2018 at 10:34 AM, Nigel T <nigel.2048 at gmail.com < Caution-mailto:nigel.2048 at gmail.com > > wrote:
> 
> 	Cem mentioned that he discussed these concerns at length in the past.  If you are unaware of what the concerns are then
> how can you be so declaratively insistent in your assertions that they can just leave code in the public domain?
> 
> 
> I was around for Bryan discussing this once. However, as I laid out in another message, the problem of public domain isn't unique to
> the government, and actually effects every Open Source program, simply because not all work can be copyrighted and all programs
> have portions that can not be copyrighted. And yet we haven't had a severability attack on an Open Source license that I am aware of.

Money.  Patent trolls and other malevolent entities don't sue because it's fun, they sue as part of a business model.  If the projects you're talking about didn't have backers with deep pockets, then there wouldn't be any point in suing them.  The USG not only has a lot of money, it has the right to tax/print more.  That makes it a tempting target.

> 	It's not necessarily in the public domain in all jurisdictions.  This is one of the concerns that Cem and others have covered in the
> past.
> 
> That's correct. And as long as the license provides the required permissions for the entire work, that's not a problem.

But under the model you're suggesting, the permissions change depending on the jurisdiction you're in; within US jurisdiction there are one set of rights, while outside there are other rights.  I want everyone to have a level playing field regardless of where they're located.

> In contrast, the attempt to assert control over the public domain in the U.S. by applying contractual terms and terms regarding NASA
> as a secondary beneficiary create legal ambiguity as written, and also establishes a really harmful precedent that is damaging for Open
> Source. We need the public domain to be public domain without restrictions, or Open Source can't really function. If public domain
> material is contractually restricted, it takes away all potential to for Open Source to interoperate with proprietary software. So for us
> to accept those terms would be damaging to all Open Source.

But the USG ALREADY has the ability to make these kinds of contracts!  We can limit who we share data and other materials with under NDAs and contracts with contractors, who are then required to bind any subcontractors to the same terms.  This is a recursive subcontractor clause.

> 	Caution-https://github.com/USArmyResearchLab/ARL-Open-Source-Guidance-and-Instructions < Caution-
> https://github.com/USArmyResearchLab/ARL-Open-Source-Guidance-and-Instructions >
> 
> 
>  This one accepts CC0 as a viable license for the public domain. CC0 is a dedication to the public domain with no restrictive contractual
> terms. I don't see why CC0 is acceptable here and the BSD license, for example, is not.

If CC0 were declared invalid within the US on copyright grounds, then it would mean that material that is dedicated to the public domain is (wait for it) in the public domain.  In those areas where the material does have copyright attached (outside US jurisdiction) CC0 makes it be the same there as it is within US jurisdiction.  

BSD doesn't have that behavior if declared null and void by the courts.

> 
> 	Caution-https://github.com/Code-dot-mil/code.mil < Caution-https://github.com/Code-dot-mil/code.mil >
> 
> 
> What statement in there? It's the entire code.mil < Caution-http://code.mil >  site.
> 
> 
> 	Caution-https://github.com/openjournals/joss/issues/179 < Caution-https://github.com/openjournals/joss/issues/179 >
> 
> 
> This is regarding JOSS acceptance policy, they note that licenses exist and that it is better to use one even if you don't actually have
> rights to grant.

Which leads us back to the severability problem, which is why GOSS people keep hammering on the copyright problem.

> 
> 	You also keep dodging the point that one of your primary concerns of license proliferation does not apply in the case of NOSA.
> 
> 
> This is predicated on the Open Source community not actually attempting to incorporate the work into anything.  I don't think it's
> realistic.

Are you worried that NOSA 1.3 and 2.0 will be active at the same time?  

Thanks,
Cem Karan

---
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