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

[Karan, Cem F CIV USARMY CCDC ARL (USA)]

On  Friday, February 28, 2020 1:28 PM McCoy Smith wrote:

>>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 (Caution-https://en.wikipedia.org/wiki/Severability < Caution-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.

I need to go back and re-read them immediately then.  Thank you for pointing them out to me!

>>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.

It sounds like an odd concern until you read the sections in most licenses concerning patents, liability, and warranty, each of which the Government needs to address both for itself and any downstream users.  That's what's really of concern here.  Without a severability clause, we're not sure if the non-copyright clauses would survive in court.

>>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.

I don't know the full reasoning behind why they couldn't participate on the list, but I do know that they were more open to talking with lawyers directly, off list.  Is that an option for you?

>>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.”

Only way to know for certain is to take it to court, sad to say... :(

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

THAT would be a serious concern!  I don't recall there being such a problem, can you find it in the archives?  If it does exist, then it needs to be addressed.

Thanks,
Cem Karan

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