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

Marc Jones marc at joneslaw.io
Mon May 7 19:40:22 UTC 2018

>> 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.
Just because material is not protected by copyright, it doesn't mean you
cannot restrict its use by contract. The terms of contracts are not
generally preempted by copyright law. To oversimplify things, the contents
of a phone book are not protected by copyright. See, Feist Publications,
Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991). Nevertheless at
least one court has held that an individual's right to distribute those
facts can be restricted by contract. Procd, v. Zeidenberg, 86 F.3d 1447
(7th Cir. 1996). I do not think that is particularly remarkable since NDA's
are routinely enforced and are generally meant to restrict  a party to the
contract's ability to share facts. The parties in ProCD were both private
parties, but unless there is a statute denying the federal government the
ability to do so, I would be surprised to find out the federal government
can't do what a private party could do. For that reason without
specifically researching the topic, I do not doubt the Federal Government's
ability to enter into a contract that limits a person's ability to
distribute source code not protected by copyright.

I do think the point Bruce raises about binding downstream users to the
contract terms is interesting. This problem I think is commonly encountered
by the authors of open data "licenses." Many open data licenses are
explicitly defined to be contracts, because - I have always assumed - the
authors of the licenses expect the license to be used in the distribution
of material that has little or no copyright protection. Although the trend
is for more open data publishers to just use a public domain dedication
like CC0, there are still organizations that prefer to use contracts to
distribute their open data. For instance the Community Data License
Agreement is explicitly a contract and that was published just this past
year. [1] Most of the licenses published by Open Knowledge International
are also contracts. [2] Related to open data licenses, many of the Creative
Commons licenses are designed to be be licenses but with a fall back to
contract law in case the jurisdiction will recognize it as a contract.[4] I
acknowledge many of the open data licenses also deal with EU database
rights, but they are intended to work in the United States as well in the
absence of database rights.

I am unaware of any cases showing how effective these open data licenses
are at binding downstream users to a contract. I would think the main
problem is how to form contracts on redistribution. How do you ensure that
the party receiving the material intends to agree to the contract terms?
And do so reliably so that everyone who comes into possession of it as it
is redistributed also agrees. Establishing the original publisher as being
a beneficiary of any subsequent contracts might solve the privity issues
required to enforce contracts, but it won't cause a contract to exist if
the elements required to form a contract do not otherwise exist.

Considering the nature of how FOSS is distributed, I don't think you can
rely on the exact same arguments in ProCD either since it is unlikely that
people using FOSS source code will ever click a button saying I agree, nor
will there be a box to ship the terms with. It's not clear to me that
shrink-wrap or click-wrap agreements are applicable, or that browser-wrap
agreements are generally effective. Perhaps requiring by contract that a
notice of the terms of the contract at the top of each file reproducing any
of the text covered by the agreement would be sufficient notice to bind
subsequent users. But once someone violated that contract and published the
uncopyrighted text, is there any recourse? And would NASA or any open data
publisher care? I would expect that the users of open data license,
generally accept the risk that at least some portion data will escape the
terms of the agreement and are comfortable with that.


[1] https://cdla.io/permissive-1-0/
[2] Section 2.0 of the ODBL license says "This License is: ...  c. An
agreement in contract between You and the Licensor."
[3] "To the extent this Public License may be interpreted as a contract,
You are granted the Licensed Rights in consideration of Your acceptance of
these terms and conditions, and the Licensor grants You such rights in
consideration of benefits the Licensor receives from making the Licensed
Material available under these terms and conditions." Creative Commons
Attribution-ShareAlike 4.0 International Public License available at
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