[License-discuss] [Non-DoD Source] Re: Resources to discourage governments from bespoke licenses?

Karan, Cem F CIV USARMY CCDC ARL (USA) cem.f.karan.civ at mail.mil
Fri Feb 28 15:45:30 UTC 2020

As one of those people who keep trying to get recognition of how the US Government (USG) **really is** different, I’d like to point out the following issues:

1)      As far as I know, all of the major Open Source licenses rely on copyright for protection in some form.

2)      Also as far as I know, none of the major Open Source licenses have a severability clause (https://en.wikipedia.org/wiki/Severability) to address what happens if one or more clauses in the license cannot be enforced, which leaves it up to the courts to decide what will happen.

3)      Works authored by the USG and its employees do not have copyright attached in the USA.

This is where the weird ‘special snowflake’ issues keep coming up from (at least from my end).  The concern is that if we use e.g. Apache 2.0, we don’t know if the license will be struck in its entirety if the portions regarding copyright are struck.  NOSA was supposed to address that, and NOSA 3.0 was supposed to address the concerns over 2.0, but as far as I can tell, it’s dead in the water.

If you really want to make those ‘special snowflake’ situations disappear, change the law so that the USG is no longer special, and can use the standard licenses.  I, for one, would be overjoyed to be able to use the regular licenses on all my works as it makes everyone’s life easier, including my own.  But as it currently stands, I don’t know if I’m exposing both the USG **and users of my work** if I use a standard license when some of the clauses don’t apply.

Cem Karan

Other than quoted laws, regulations or officially published policies, the views expressed herein are not intended to be used as an authoritative state of the law nor do they reflect official positions of the U.S. Army, Department of Defense or U.S. Government.

From: License-discuss <license-discuss-bounces at lists.opensource.org> On Behalf Of McCoy Smith
Sent: Thursday, February 27, 2020 10:13 PM
To: license-discuss at lists.opensource.org
Subject: [Non-DoD Source] Re: [License-discuss] Resources to discourage governments from bespoke licenses?

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You might want to check out Iain Mitchell’s chapter in this book

Caution-https://global.oup.com/academic/product/free-and-open-source-software-9780199680498?cc=us&lang=en& < Caution-https://global.oup.com/academic/product/free-and-open-source-software-9780199680498?cc=us&lang=en& >

There’s a second edition currently in the works but it won’t be out til the summer

On Feb 27, 2020, at 6:28 PM, Michael Downey <michael at downey.net<mailto:michael at downey.net>> wrote:
And now for something completely different...

While it's not nearly as common as it was for a while, now and then we get some government  and inter-governmental clients who want to roll their own license because they think they are a special case of indemnity or privilege requirements, things along those lines. But typically when we hear those remarks, it's not coming from legal folks with FLOSS experience but instead just default thinking that the most protective stance is to create something bespoke.

Can anyone on the list recommend any good reading materials, essays, talks, or presentations on why we should discourage bespoke licenses, especially for governments and similar agencies?

Thanks in advance for any memories or bookmarks folks can dust off --

Michael Downey
United Nations Foundation

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