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

Bruce Perens bruce at perens.com
Fri May 4 13:30:19 UTC 2018

On Fri, May 4, 2018 at 1:05 AM, Padilla, Rob (ARC-DL) <
robert.m.padilla at nasa.gov> wrote:

> Hello Bruce,
> Please do talk with other attorneys about the interpretation.  I’ve cc:ed
> Mark Radcliffe.

Mark has to be be disqualified on this particular issue, on the basis of
his having already formed and stated an opinion years ago. I have access to
other counsel.

> The federal judge in the Gilmore case decided that the software wasn’t an
> agency record subject to FOIA because it didn’t provide any insight into
> agency decision making or otherwise reflect or show the structure,
> operation, or decision-making functions of the agency.

FOIA is not necessarily relevant here. Even if we accept that the software
is not an agency record, that interpretation is regarding whether FOIA
mandated a release of the software from secrecy. Extending that
interpretation into a thesis that the software is somehow not in the public
domain once no longer secret seems far beyond what is there in the ruling.

OSI's imprimatur does not block NASA from making releases. It only advises
the Open Source community that the license should be accepted, meaning that
it fulfilled the OSD requirements and is otherwise reasonable and likely
not to yield surprises in court.

This thesis of contractually restricted material in the public domain,
however, is still undetermined law. Attorneys have opinions but courts have
not ruled. So, I can't say that the license will behave as intended in
court. Nor can I recommend before a court finds on the issue that OSI
promote this interpretation over one that the software is unrestricted.
It's not in their interest.

So, there is a high bar for me to recommend that OSI accept the license,
and I understand fully why the board has so far declined to do so. I will
continue to look into the issue, but I have to say that the probability
that I will recommend that OSI rescind their opinion is low.


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