[License-discuss] NOSA 2.0, Copyfraud and the US Government

[Karan, Cem F CIV USARMY RDECOM ARL (US)]

Hi all, as you know I've been pushing the position that the US Government may 
have problems using copyright-based licenses on works that do not have 
copyright attached.  One of the lawyers I've been working on this with has 
been kind enough to dig up the exact statutes and give some clearer legal 
reasoning on what the issues are.  It basically boils down to two issues; 
first, there is question of severability 
(https://en.wikipedia.org/wiki/Severability) which I've touched on before, and 
the second has to do with copyfraud (https://en.wikipedia.org/wiki/Copyfraud). 
Copyfraud is defined within 17 U.S.C. 506, section (c) 
(https://www.gpo.gov/fdsys/pkg/USCODE-2010-title17/html/USCODE-2010-title17-chap5-sec506.htm). 
I've copied out the relevant language below; the commentary within the 
brackets is from ARL's lawyer:

"""
(c) Fraudulent Copyright Notice.-
Any person who, with fraudulent intent, places on any article a notice of 
copyright or words of the same purport that such person knows to be false, or 
who, with fraudulent intent, publicly distributes or imports for public 
distribution any article bearing such notice or words that such person knows 
to be false, shall be fined not more than $2,500. [Note - Any software pushed 
out under Open Source would not have a notice of copyright affixed to the 
software. However, would software pushed out under an Open Source license that 
assumes the existence of copyright be considered tantamount to a notice of 
copyright and therefore an actionable fraud under this section?  Don't know.]
"""

I know that there were questions at one time about the need for special 
licenses/agreements like NOSA 2.0, but this is one of those potential 
problems.  Copyright-based licenses are great for works that have copyright 
attached, but they may be problematic for works that don't have copyright 
attached.

So, given that we had come up with the idea of using two licenses in projects 
(CC0 for portions of a work that don't have copyright, and an OSI-approved 
license for portions of a work that do have copyright attached), why should 
OSI care?  The problem is that CC0 is still not OSI-approved (at least, it 
isn't on the list at https://opensource.org/licenses/alphabetical).  That 
means that the Government could be putting out works that are in some kind of 
zombie-like state, half-Open Source, and half not.  If OSI approved CC0 as 
being an Open Source license, or if NOSA 2.0 was approved, then the problems 
could be fixed.  So, where are we in either case?

Thanks,
Cem Karan
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