[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 20:31:05 UTC 2020

> >>The US Government has a lot of money, and with money can come lawsuits.  These are not only expensive to fight, they can also have a
> chilling effect on both the use of, and publication of, Open Source software by the US Government.  I personally want to avoid that kind of
> problem.  (In the earlier discussions on the mailing list, I mentioned the [Rambus](Caution-
> https://en.wikipedia.org/wiki/Rambus#Lawsuits) litigation as a motivating example).
> This is a fairly inapt analogy, since the Federal Government has general sovereign immunity from suit, which it has waived but with
> conditions upon the remedies that anyone can pursue against them, and the court in which those remedies can be pursued.  Caution-
> https://uscfc.uscourts.gov/node/2927
> This is why I think it would be more productive to have the government lawyers on the discussion.  They would know about the operation
> of the Court of Federal Claims, the limits that that puts on private entities claims against the USG, and perhaps how the licenses propose
> the concerns that they have (about lawsuits, or anything else).

I'm aware of this, but I'll try to recap what I remember from the past from talking to them (my memory is fuzzy, and IANAL, so I may be getting things wrong.  If they ever come in with different statements, go with what they say).  The issue wasn't just with the Government, which as you say, is generally immune from lawsuits.  The issue was protecting downstream users as well from being sued simply for using material distributed by the Government in good faith.  In addition, I know that the Government has waived certain types of immunity (I'm not a lawyer, so I know that this is true, but I don't know the details; perhaps you do?), so there may be additional ways of being sued that I'm not aware of.

> [BTW: in general I think OSI's discussion on license approval is one that is supposed to happen publicly, and I'm not sure why government lawyers would want to , or ought to, get an exception to that]

My memory on this is **very** fuzzy, and the details were explained in somewhat technical legal jargon, so if I get this wrong, please forgive me.  There was some kind of issue involving giving what could be construed as legal advice to someone that wasn't their client (the US Government).  For some reason, talking to other lawyers solved the issue. I don't know the details, and given how long it's been, I'd have to go ask them about it again to find out what they are.  Also, just as another caveat, I might have gotten the reasons **completely wrong.**  It's been a long enough time that I don't really remember things well.  I wish I could be of more help on this issue, but aside from asking them to get on the list again, there's not much I can do.

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.

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