[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]]

[Brendan Hickey]

Hi Cem,

Could you give us an idea of how widely this is being discussed at the USG?
As an outsider it's unclear if this is just the ARL and NASA or much
broader. I'd expect attorneys with NASA to have a different set of concerns
than those at the GSA or USPS. In particular, is the USDS in the loop?
Coordinating OSS efforts within the US federal government seems like
something that would naturally fall within their remit.

As a staunch anti-proliferationist, I think the OSI should be hesitant to
approve a narrowly tailored and legally novel license. It would be helpful
to know if severability and contract concerns represent consensus legal
opinions within the USG. I'm more than happy to be misinformed, but there's
context that I don't have.

Brendan

On Thu, Jun 21, 2018, 3:38 PM Karan, Cem F CIV USARMY RDECOM ARL (US) <
cem.f.karan.civ at mail.mil> wrote:

> > 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
> _______________________________________________
> License-review mailing list
> License-review at lists.opensource.org
>
> http://lists.opensource.org/mailman/listinfo/license-review_lists.opensource.org
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.opensource.org/pipermail/license-review_lists.opensource.org/attachments/20180621/156dd4ea/attachment.html>