[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) cem.f.karan.civ at mail.mil
Wed Jun 20 20:52:51 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 3:56 PM
> To: License submissions for OSI review <license-review at lists.opensource.org>
> Subject: Re: [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]]
> 
> 
> On Wed, Jun 20, 2018 at 12:30 PM, Karan, Cem F CIV USARMY RDECOM ARL (US) <cem.f.karan.civ at mail.mil < Caution-
> mailto: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

So, give them the rights to the material under a license of some kind?  One that doesn't depend on (non-existent) copyright?  Like NOSA 2.0 is doing?  

For what it's worth, I understand your concerns, but there are still two problems:
- USG works can't use a license that depends on copyright for enforcement
- JOSS and other venues refuse to accept material that isn't under some OSI-approved license.

We're trying to put together a license that the USG can use that covers all the bases (warranty & liability, IP rights, etc.), that doesn't require copyright for enforcement, and which OSI will accept.  How would you write such a license?


Thanks,
Cem Karan

---
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