[License-discuss] Government licenses

[Christopher Sean Morrison]

While I can appreciate the perspective some have that limitations to US copyright law are supposedly the prevailing concern with respect to IP, that’s simply demonstrably not the case with Gov’t works.

The UAV example was evidently a distraction despite the “(with software..” disclaimer as there are an abundance of purely “intangible" agreement examples.  They are simply more difficult to discuss without sharing their particulars; but the point was that such agreements exist, are *pervasive*, are applied daily with foreign and domestic entities, and have been successful in court.  These are not viewed by many as “circumventing copyright law” but, rather, as pertaining to an abundance of other laws / regulations that the USG has available, many of which reserve and convey rights that overlap with those of Title 17, some of which uniquely pertain to what the USG can and cannot do.

There’s also the fundamental disagreement that USG releasing software as Open Source under mechanisms that do not rely on copyright law would be in any way harmful to the Open Source brand.  I fully reject that notion.

There are several OSI-approved licenses already in this category, in use for many years, and no harm has been demonstrated.  On the contrary, there are many exemplary success stories for GOSS spanning multiple approaches to licensing.  That is not to suggest that OSI must accommodate outside the OSD.  None of the approaches being suggested or that are in active use do that imho, contrary to the suggestion that they’re somehow harmful.  

The simple fact continually getting glossed over is that there is not an abundance of Government codes available (as GOSS or FLOSS or public domain or whatever have you).

To me this is of paramount concern as they are the largest producer by a considerable margin.  If there’s a better approach that can work, that is realizable, I’d be all for it.  However, suggesting doing nothing as some have until laws change is, to me, worth rejection.  It’s in the interest of humanity and the ideals of the OSI that their code be made available.  I and many others believe much of it *should* be Open Source.  How the method of licensed release could possibly cause harm is a fallacious argument to me as the alternative is status quo — to not release, and we’ve already observed that approach for decades.

Sean



> On May 30, 2019, at 8:51 AM, Russell McOrmond <russellmcormond at gmail.com> wrote:
> 
> 
> On Wed, May 29, 2019 at 3:55 PM Tzeng, Nigel H. <Nigel.Tzeng at jhuapl.edu <mailto:Nigel.Tzeng at jhuapl.edu>> wrote:
> Heh, and I decided to leave the lists right before the discussion became interesting.
> 
> 
> Well, we will need to agree to disagree.
> 
> 
> * The value we are discussing is attaching the Open Source brand to this software.  Without the OSI approval the software can continue to be released, it just can't be called Open Source.  If that means some software won't be released as US government policy suggests that software should be released Open Source, then that is a matter of the USG agency not being willing to do what is required to adhere to that policy.  It is not something where the OSI is obligated to do things it (hopefully) sees as harmful to the Open Source brand.
> 
> * https://opensource.org/trademark <https://opensource.org/trademark> , and many institutions reference the OSI license list.  Having software licensed in a way approved by the OSI has value, otherwise there wouldn't be so much discussion about license approval.
> 
> * I reject the notion that tangibles and intangibles are similar, and that policy intended only for tangibles should be imposed on intangibles.  I could quote a letter written by Thomas Jefferson to Isaac McPherson that even in 1813 expressed just how different these things are, but we have likely already all seen it.   The erosion of that understanding of these differences has always been harmful to the FLOSS community, and much of the advocacy work we do with governments is essentially trying to fight that erosion.
> 
> *  US copyright policy has a limitation to copyright for the US government.  The intent is that the US government doesn't have that right against US citizens.  A US government agency attempting to assert copyright-like restrictions against the activities of US citizens in contract law is clearly an attempt to circumvent the limitations and exceptions of US copyright law.   This is not an accusation, but a statement of fact.
> 
> *  Acceptance of the contractual terms in the GPL are triggered by carrying out activities covered by copyright.  Meaning, you accepted the contract by carrying out those activities which needed permission (either you accepted it, or you infringed copyright).   This is entirely different than having a contract apply to me (pretending for the moment I was a US citizen) which "Fred" might have agreed to, but I did not do any activity that suggested I agreed to the contract.  This is a misinterpretation on your part of the transaction which happens with the GPL.
> 
> * Copyright, patents, trademarks, and other sui generis rights applied to intangibles being mentioned within the same license agreement will become increasingly common.  That doesn't mean that the agreement necessarily tries to expand the scope of any of those rights, or attempt to imply contractual agreement for a third parties carrying out an activity that never required permission from any rightsholder for any type of statutory monopoly.

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