[License-discuss] Government licenses

Wed May 29 14:02:55 UTC 2019

On Tue, May 28, 2019 at 10:33 PM Christopher Sean Morrison via
License-discuss <license-discuss at lists.opensource.org> wrote:

>
> Except it’s not really a work-around, it’s the widespread standard
> practice that has persisted for longer than OSS has existed.  Contracts /
> Agreements are the manner in which all Gov't creative works are shared that
> are in active use, at least by the USG.  Think of a UAV (with software,
> without weapons) distributed to an ally.  There’s a contractual agreement
> in place.  This is nothing new and unlikely to change.  The practice
> predates software.
>

The transfer of possession of a tangible is not analogous to the
communication and/or distribution of a copy of an intangible.

FLOSS exists to harness the ways in which intangible software is different
than tangibles like a UAV.  Software is nonrivalrous, has a zero marginal
cost, and so-on.

I would suggest that any policy discussion that starts with presuming
software is like a tangible is against the interests of the FLOSS community.

Separately:

If a government employee communicates software to "Fred", and "Fred"
communicates it to me, under what legal authority am I bound to the
contract the employee had with "Fred"?  With copyright licenses it is the
permissions required for copyright, but in this scenario why wold there be
an obligation?  And if an upstream or downstream entity has obligations,
how is that not a circumvention of the limitations and exceptions to
copyright?

In my circles, avoiding buying back their own Open Source is not a
> principle concern any more — it definitely was a consideration in the late
> 90’s.  Maybe it’s still an issue to some, but there has been so many
> successful Open Sourcings in the time since, under myriad methods, that
> those fears have mostly disappeared.  Today’s concerns are dominated by
> untested legal postulates (uncertainty in licensing), sheer process
> complexity (lack of formal guidance), and the speed of acquisition — Open
> Source is viewed as a way of developing software faster.
>

If the concern about buying-back their own software is no longer a concern,
then why the desire for a copyleft license?   If a government entity was
helping the FLOSS community by creating a software specific public domain
dedication, then there would not be push-back.  There are real issues with
US government software (no copyright within the USA, but presumed to be
copyright outside the USA) that need to be solved, but solving that problem
does not in any way require contractual obligations on third party software
distributors/users/developers.

There are groups working hard on both from a regulatory and policy
> perspective (code.gov, code.mil, data.gov, codeforamerica.org, etc), but
> none of that is likely to change Title 17 or the fact that all except three
> (maybe four?) OSI-approved licenses are contingent on copyright.  The Gov’t
> isn’t going to suddenly release everything into the public domain in order
> to participate — they could have already.  They’ll simply continue with
> signed agreements or choose not release.
>

The OSI is the steward of the Open Source trademark
https://opensource.org/trademark .  Their purpose is not to provide third
parties the marketing bonus of being able to call something Open Source,
but to protect the Open Source brand from being associated with activities
which are contrary to the interests and goals of the Open Source community.

Any entity can release software under whatever terms they want, including
the US government.  The fact some government employees would like to call
what they are doing "Open Source" does not obligate the OSI to approve
licensing and/or contractual terms for software distribution that would
harm the Open Source brand.

As for licensing, what the code.gov guys are testing is particularly
> interesting.  They’re suggesting agencies go ahead and use a copyright
> license, but with a disclaimer that it might not apply to some recipients
> (because some/none/all code may be public domain to them).  That will
> almost certainly create enough uncertainty with recipients that the end
> result will be to treat the work as OSS and, through time, will result in
> eventual substantial derivation that is OSS without caveat.
>

This complexity exists with many software projects.

If I release software with a public domain dedication, and you combine it
within a GPLv3 licensed project, then the project as a whole is understood
to be under GPLv3.  Someone may have knowledge of the specific
contributions I made and can use those contributions alone under different
terms.  I couldn't launch a copyright infringement lawsuit based on those
contributions, and knowledge of my contributions could be used to defend
against a copyright infringement claim against someone who only copied my
contributions.

There is a common confusion about how combining contribution works,
especially when discussing the GPL with people as it is suggested that
combining software licensed under a GPL compatible license changes the
license.  It is a matter of the compilation/collection (copyright meaning
of term, not software meaning) having a copyright that is said to be under
the GPL, but the licensing of the underlying material stays the same.

It’s a gamble as the prevailing legal opinion prior was that would
> invalidate the license, which would have a massive chilling effect on
> GOSS.  The fact that it comes from the White House (and now across two
> administrations) gives it some credibility, albeit still untested.
>

The US government is in a special situation when it comes to copyright
enforcement claims, as it can't be a party in a lawsuit against a US
entity, but it can be against a non-US entity.

As long as there are non-US government employee contributions to a US
government led project, then the complexity you suggested above comes into
play.  This sounds like a motivation for US GOSS projects to actively
recruit non-US government employee contributions.

-- 
Russell McOrmond, Internet Consultant: <http://www.flora.ca/>

Please help us tell the Canadian Parliament to protect our property rights
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