[License-review] Fwd: [Non-DoD Source] Resolution on NOSA 2.0

Bruce Perens bruce at perens.com
Fri May 4 00:22:00 UTC 2018

Hi Rob,

On Thu, May 3, 2018 at 3:59 PM, Padilla, Rob (ARC-DL) <
robert.m.padilla at nasa.gov> wrote:

> That’s important because (as mentioned above) there is a lot of confusion
> that all Government software is in the public domain.  This decision
> [Gilmore v. DOE] clarified that is not the case.

John Gilmore, coincidentally, is a participant in the Open Source community
and funder of organizations like OSI, I think we first met in '87.

We want to be very careful about this interpretation. If it works as you
believe, it creates another intellectual property protection. Such is not
in the interest of the Open Source community or  the general public, IMO.
So, I'm going to push back on this a bit here. And I may get a lawyer to
push more:

FOIA is meant to expose the operation of the US Government to the view of
the people. In the cited case, it was deemed that the government had the
right to *keep the CLERVER software secret, *because the software itself
did not construe part of the decision-making process of government which
the people have a right to see. It might be taking the interpretation
farther than the court actually ruled to believe that this establishes a
protection that persists after the material is *no longer secret.*

If the Government can withhold release of its software under a FOIA
> request, then even without copyright in the U.S. it can provide that
> software under terms that provide conditions on how recipients can use the
> software. That ability to provide software under terms removes the notion
> that such software is in the public domain.

While I have previously heard the theory that public domain software can be
contractually restricted, I am not aware of someone ever bringing a breach
of contract case regarding a work in the public domain and not covered by
some sort of droit d'auteur in law. Can you cite such a case?

What is the consideration of such a contract that extends to *the entire
public*? The government might contract to release information from secret
once, in return for some contractual obligation by some party. Having made
that release, the work is no longer secret and does not seem to have any
further protection in law at that point. What obligates *the rest of the
public* to join themselves to such a contract in order to have a right to
make use of copyright-like rights on the same software? The consideration
of releasing the material from secret protection was not made to them. If
this agreement is with the entire public, who has the right to join into
such an agreement with the government on behalf of the entire public?

> A group of NASA patent attorneys drafted, submitted and received OSI
> approval for the NOSA (which issued as 1.3) as a special purpose license
> back in 2003-2004.  The purpose was to address the above uncertainty about
> the Government’s ability to enforce the terms, ownership, etc. over
> software we would release as OSS.  It provides a framework or tool for the
> Government to disseminate taxpayer funded software in an open source
> manner.  And, it addresses those situations where Government software
> includes Government employee authored code where there is no U.S. copyright.

Yes. OSI policy is that we are not required to make the same mistake twice.

> The attorneys crafted the NOSA with language that specifies, under
> contract law, that the Government is a third-party beneficiary of all
> down-stream distributions.

Right. So, the government has a right to sue someone for breach of contract
who is not directly a party to a contract with the government. And thus it
seems to me that you are attempting to propagate the obligation from that
very first person who received the software in the act of the government's
releasing it from secret. But I am still not seeing that such a party
actually has any consideration to offer to the next party in this chain.

So, ultimately what you are asking me to do here is to lend the credence of
OSI to a new intellectual property regime which I am not yet at all sure
actually exists and may still not be in our interest if it does. I will now
have a chat with some lawyers.


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