[License-discuss] Government licenses

Wed May 29 19:03:30 UTC 2019

Heh, and I decided to leave the lists right before the discussion became interesting.

My final comment on the general subject is simple…I’ve seen too many projects not make it through the wickets to becoming open source, one of my own being one of them, that the issue is not a theoretical logical exercise or fallacy.  The friction to open source produced software within the USG is high and the path of least resistance is to not.

Specific to Russell’s comments, I disagree that the value of the code is less than the cost of temporary work arounds of GOSS licenses.  The USG spends billions on writing code…and while paying for their own code again is less of a concern today than it was a decade ago it still happens.  The value of that code may be minimal to some folks but it has been an amazing value for those of us that use GOSS and has resulted in measurable cost savings for taxpayers.

While replication costs for software are small it is the NRE that is expensive and holds just as much value as any tangible object.  The transfer of a UAV is not just about the flyaway (marginal) cost of a single unit but the total value incorporated into that UAV including IP…i.e. the full production cost.  Ship the UAV without software and it’s just an expensive lawn display.

A real world example is the flyaway cost of a Reaper unit (4 UAVs + ground component) is around $60.3M but the production cost is $120.8M (calculated by dividing the total program costs by the number of units procured using 2012 numbers).  The intangible pieces cost just as much as the tangible and every bit as valuable.

Finally, the assertion that the USG is doing something incorrect or “abusive” by “circumventing the limitations and exceptions to copyright” through contract law is IMO incorrect and “against the interests of the FLOSS community”.  By the way, that is a very interesting turn of phrase…almost an accusation wouldn’t you say?
IANAL but in Versata v Ameriprise  (Case No. 1:14-cv-12, U.S. District Court, Western District of Texas) I believe we see that GPL v2 relies on contract law to provide obligations beyond the copyright act…namely the affirmative obligation to provide source code to recipients.

To argue that you should have no obligations because you got the software from Fred because it exceeds the limitations of copyright would seem to me to pretty much also break the way GPL works.  Also, GPL v2 obviously extends past the limitations of copyright in order to provide use rights…i.e. patent rights.

Also, AFAIK the OSI does not own the trademark for “Open Source”.

Anyway, thanks everyone for the interesting conversations over the years but my capacity for tilting at ideological windmills has reached its limit for now.  If I got anything wrong in this email, I’m sure someone will correct it.

ObDis:  Speaking only for myself

On 5/29/19, 10:03 AM, "License-discuss on behalf of Russell McOrmond" <license-discuss-bounces at lists.opensource.org<mailto:license-discuss-bounces at lists.opensource.org> on behalf of russellmcormond at gmail.com<mailto:russellmcormond at gmail.com>> wrote:

On Tue, May 28, 2019 at 10:33 PM Christopher Sean Morrison via License-discuss <license-discuss at lists.opensource.org<mailto: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<http://code.gov>, code.mil<http://code.mil>, data.gov<http://data.gov>, codeforamerica.org<http://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<http://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/>

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