[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 Thu, Jun 21, 2018 at 9:53 AM, Karan, Cem F CIV USARMY RDECOM ARL (US) <
cem.f.karan.civ at mail.mil> wrote:

>
> You have no idea how much I agree with you... I'm as unhappy having to
> keep
> hammering on this as you are that I am hammering on it, but without
> solving it,
>

I do accept that, and thank you for continuing the conversation. It is
indeed unfortunate that this dragged on for 5 years.


> I'm afraid that GOSS could become a trojan horse and harm OSS in general.
>

So we're both afraid of the same thing.


>
> I understand what you're saying, but the issue is that if a license makes a
> claim **based on the assumption that there is copyright in the material**,
> it
> is a false claim.
>

This is not unusual. Of course we have grants of patent rights in Open
Source licenses, even where the grantor doesn't know of a patent. They are
loath to search their own portfolios, and of course searches aren't
perfect. When there actually are patents, those patents revert to the
public domain within the term of the grant, and the language in licenses
doesn't mention that.

So, let's add some language to handle this:

This license grants intellectual property rights only to the extent that
these rights exist in your jurisdiction and can be granted under the law.

Not enough? We can elaborate:


You may have additional rights under the law besides those granted in this
license. Some portions of the work may be considered to be in the public
domain, under the law in particular jurisdictions.



>
> The problem is that if that is one clause of a larger license, does the
> fact
> that one clause is unenforceable affect the rest of the license?
>

I suspect that the courts will see it that way regardless of the license
language. NASA abandons secrecy in a context where secrecy is the only
right it has. This is not done in a contract between NASA and the entire
public globally. It is in a contract between NASA and one licensee. When
that licensee transmits the license to another, there is no longer any
secrecy, and thus there is no consideration in the contract. NASA attempts
to use third-party beneficiary language to fix that, but it's weak.

This is the crux of why the government is looking to
> create a new license that is not based on copyright.
>

Understood. But maybe not the best solution.


>
> OK, and then we need to also handle the patent and other IP claims,
>

To the extent that there are no rights to grant, it's going to be very
weak. I don't think NASA can fix it by synthesizing rights out of air.


> as well as the Anti-Deficiency Act requirements
>

So, the question is whether a simple release of public domain material by
USG would create a coercive deficiency, even when there is no contract
creating any obligation whatsoever to be the basis of that deficiency. So,
your theory here would be that the potential for intellectual property
litigation and warranty would create that deficiency. Are you sure this
would be an issue? Every contract USG enters into carries the potential for
lawsuit, and if this is considered a coercive deficiency they could never
enter a contract.

Would making the license a unilateral grant of rights without contract
terms be a solution?


> , etc.  That will end up with numerous
> notices, none of which are considered to be Open Source, and all of which
> combined make everyone who is looking at it feel a little nauseous.
>

Can you try? Or at least enumerate them? We can't make any decisions about
this without seeing the problem.


>
> """
> Amendment to LICENSE.txt: If any clause in the LICENSE.txt file is declared
> unenforceable by a court of competent jurisdiction, then that clause shall
> be
> severed from the LICENSE.txt, and all other clauses shall remain in full
> force.
> """
>

So, here is the already-OSI-approved language in the GPL version 2:

If any portion of this section is held invalid or unenforceable under any
particular circumstance, the balance of the section is intended to apply
and the section as a whole is intended to apply in other circumstances.



>
> 2) Can it be done?  E.g., the Apache 2.0 license has an END OF TERMS AND
>    CONDITIONS line at the end; if I add in new text, then it isn't Apache
> 2.0
>    anymore.  If I put it in a different file, can it be ignored because it
> is after the
>    end of terms and conditions?
>

You are able to create an Apache license derivative with your chosen
language. License text is functional, so not generally held to be subject
to copyright. That's one of the reasons some licenses have preambles,
because that can be copyrighted.


> 3) If 1 & 2 are OK, would the USG accept it?
>

The OSI? I don't see why not.

    Thanks

    Bruce
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