<div dir="ltr">Hi Rob,<br><div><div class="gmail_extra"><br><div class="gmail_quote">On Thu, May 3, 2018 at 3:59 PM, Padilla, Rob (ARC-DL) <span dir="ltr"><<a href="mailto:robert.m.padilla@nasa.gov" target="_blank">robert.m.padilla@nasa.gov</a>></span> wrote:<br><br><div><br> <br></div><blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex"><div link="blue" vlink="purple" lang="EN-US"><div class="m_-4649898674557573375m_4135841829271599866m_-2435804267273138332m_-5016071002609695290WordSection1"><p class="MsoNormal"><span style="font-size:11.0pt;font-family:"Calibri",sans-serif;color:#1f497d">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.</span></p></div></div></blockquote><div><br></div><div>
John Gilmore, coincidentally, is a participant in the Open Source community and funder of organizations like OSI, I think we first met in '87.<br><br>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:<br><br>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 <i>keep the CLERVER software secret, </i>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 <i>no longer secret.</i><br><br></div><blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex"><div link="blue" vlink="purple" lang="EN-US"><div class="m_-4649898674557573375m_4135841829271599866m_-2435804267273138332m_-5016071002609695290WordSection1"><p class="MsoNormal"><span style="font-size:11.0pt;font-family:"Calibri",sans-serif;color:#1f497d"> 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.
<span style="font-size:11pt;font-family:"Calibri",sans-serif;color:rgb(31,73,125)">That ability to provide software under terms removes the
notion that such software is in the public domain.</span>
</span></p></div></div></blockquote><br>
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?<br><br></div><div class="gmail_quote">What is the consideration of such a contract that extends to <i>the entire public</i>? 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 <i>the rest of the public</i> 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?<br><div><br> </div><blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex"><div link="blue" vlink="purple" lang="EN-US"><div class="m_-4649898674557573375m_4135841829271599866m_-2435804267273138332m_-5016071002609695290WordSection1">
<p class="MsoNormal"><span style="font-size:11.0pt;font-family:"Calibri",sans-serif;color:#1f497d"><u></u><u></u></span></p>
<p class="MsoNormal"><span style="font-size:11.0pt;font-family:"Calibri",sans-serif;color:#1f497d">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.</span></p></div></div></blockquote><div><br></div><div>Yes. OSI policy is that we are not required to make the same mistake twice.<br> <br></div><blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex"><div link="blue" vlink="purple" lang="EN-US"><div class="m_-4649898674557573375m_4135841829271599866m_-2435804267273138332m_-5016071002609695290WordSection1"><p class="MsoNormal"><span style="font-size:11.0pt;font-family:"Calibri",sans-serif;color:#1f497d">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.</span></p></div></div></blockquote><div><br></div><div>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.<br><br></div><div>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.<br><br></div><div> Thanks<br><br></div><div> Bruce<br></div><div><br></div></div></div></div></div>