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

McCoy Smith mccoy at lexpan.law
Fri Feb 28 18:27:55 UTC 2020

>>From: License-discuss <license-discuss-bounces at lists.opensource.org> On Behalf Of Karan, Cem F CIV USARMY CCDC ARL (USA) via License-discuss
>>Sent: Friday, February 28, 2020 7:46 AM
>>To: license-discuss at lists.opensource.org
>>Cc: Karan, Cem F CIV USARMY CCDC ARL (USA) <cem.f.karan.civ at mail.mil>
>>Subject: Re: [License-discuss] [Non-DoD Source] Re: Resources to discourage governments from bespoke licenses?


>>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:


>>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.

Mozilla 2.0 does, Sec 9.  Eclipse 2.0 does, Sec. 7.  There are probably others, but those come to mind immediately.


>>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.  


This is, IMHO, an odd concern. Given that open source license is founded upon copyright licensing, if the copyright provisions are struck, there is not much left.


>>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.


Was there ever a board decision on NOSA 3.0 (from the archives all I can see is discussion on v2)?  If not, is it because they were waiting for something from the authors?  I know I was  personally frustrated by the argument that seemed to continue to be made that “the government lawyers say it must be this way” but those government lawyers were not participating in the discussion.

>>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.


I think many commenters responded that these licenses *would* apply, but there was not response to that other than “but that’s not what the government lawyers say.”

[There also were some concerns about non-reciprocity, IIRC, to which the response was the same as above]



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