[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)]

> From: License-review [license-review-bounces at lists.opensource.org] on behalf of Richard Fontana [richard.fontana at opensource.org]
> Sent: Thursday, June 21, 2018 2:48 PM
> To: License submissions for OSI review
> 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]]
>
> All active links contained in this email were disabled. Please verify the identity of the sender, and confirm the authenticity of all links contained within the message prior to copying and pasting the address to a Web browser.
>
> On Thu, Jun 21, 2018 at 12:53 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:
>
>
>> 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?  Different
>> lawyers have differing opinions, and as far as I know, it hasn't been settled
>> by the courts yet.  This is the crux of why the government is looking to
>> create a new license that is not based on copyright.  So that it isn't on the
>> hook for warranty and liability because it made a copyright claim that it
>> doesn't have, and so that downstream users are protected when they use
>> and incorporate GOSS into their own projects.
>
> Do you mean protected from the US government itself?

No, patent trolls and the like.  Since their basic business model is to find
people and groups to sue over patent infringement, it is in their best
interest to increase the number of infractions.  The easy way is to contribute
infringing material to the USG, wait for the USG to incorporate and
redistribute it, argue in court that the entire license is invalid because the
USG doesn't have copyright, and then sue everyone they can for infringing.  I
know that this sounds far-fetched, but the reason I'm worried is because of
this: https://en.wikipedia.org/wiki/Rambus#Lawsuits.

Even if the courts throw it out, it will take time to defend against, and will
be politically embarrassing.  The knee-jerk reaction of a bureaucracy when
faced with embarrassment is to stop the actions that lead to the
embarrassment, which in this case would be GOSS.  GOSS is still very, very
new, and like a seedling, it is easy to kill it.  Once there is a long track
record of GOSS, it will be much stronger, and much better able to withstand a
few blows, but until then, we have to nurture and protect it as far as we're
able to.

> Regarding the risks faced by the US government that you are describing, I'd
> like to hear a US government lawyer walk us through how that would play out in
> a real world case. I am having some trouble seeing it.
>
> Richard

I understand, but I hope that the example above will explain things clearly
for you.

That said, if the contract amendment idea is something that OSI is willing to
at least look at and possibly vote on in the near future, I can look into
whether or not that will satisfy USG lawyers.  I've already called Rob Padilla
at NASA, but he was running to a meeting so couldn't discuss it further.  I've
also run the idea past ARL's lawyers, and they're open to thinking about it.
I'll press them to put together at least preliminary language ASAP that we can
present and discuss on this mailing list.

Thanks,
Cem Karan
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.opensource.org/pipermail/license-review_lists.opensource.org/attachments/20180621/11365148/attachment-0001.html>