[License-review] For Approval: NASA Open Source Agreement 2.0

[Geurts, Bryan A. (GSFC-1401)]

OK, I'm finally back from an extended vacation, where I turned out to be more incommunicado than expected.  Apologies for tardiness, but let's get to it:

Section 3.K. is included as a nod to the NASA Software Release Program (see generally NASA Procedural Requirements 2210.1C), which requires that all NASA software that is released to others, whether to another NASA or government project or to the public, be tracked for metrics regarding interest generated by the software (see in particular paragraph 3.6 of NPR 2210.1C).  More specifically, paragraph 3.6.2 requires that, in the case of a release that is "solely by electronic means," "each recipient shall be requested to register with a NASA point of contact for all transfers of . . . Open Source software for which no Software Release Record was required (e.g., release by click wrap agreement)."  Thus, all NASA released OS software that is governed by the NOSA must include Section 3.K.  However, realizing that other government agencies using the NOSA may not require the same efforts to track released software, we decided to make Section 3.K. optional according to the particular needs/requirements of the agency.  Understanding that a requirement to register or provide recipient information would violate the OS Definition, this step is entirely voluntary.  Luis is absolutely correct in observing that nothing more than the plain meaning of "request" is applied here.

Sections 2.A. and 2.B. point out the basic differences between the NOSA and other more mainstream OS licenses:  Section 2.A. is designed to be used in connection with US government created software.  With regards to section 2.B., this is a standard license grant based upon copyright legal theory and which is found in any other OS license.  When a contractor creates software for and in behalf of NASA, NASA can require the contractor to "assert and assign" copyright in that software to NASA, which makes NASA the owner/controller of the software.  This copyright is then licensed through section 2.B., in standard fashion.  With regards to section 2.A., this applies to the case of US usage of software that is entirely created by a civil servant/federal employee within the scope of their official duties to whom section 105 of the US Copyright Statute applies.  In this case, "copyright protection under this title [17 USC 105] is not available for any work of the United States Government."  So, while under the Copyright Statute there is no US copyright in civil servant only created software, there are two important points to make: First, even if there is no US copyright protecting a government work, there is no legal obligation by the government to release software it has created to the public; at NASA this decision is made carefully and according to the requirements of NPR 2210.1C.  Second, even though there is no US copyright on government works, NASA does lay claim to copyrights on its software that are available in other countries.  Hence, government created software is not in the "public domain" and yet is different from the standard copyrighted software that is covered by section 2.B.; it is meant to give specific permission to use civil servant created software in the US in the absence of a US copyright.

I hope this helps.  Please feel free to write back or call me if you have any questions.  Thanks for listening.

Bryan A. Geurts
Chief Patent Counsel
NASA Goddard Space Flight Center
Code 140.1, 8800 Greenbelt Road
Greenbelt, MD 20771
Phone:  301-286-7352
Fax:  310-286-9502

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-----Original Message-----
From: luis.villa at gmail.com [mailto:luis.villa at gmail.com] On Behalf Of Luis Villa
Sent: Tuesday, July 09, 2013 1:38 AM
To: License submissions for OSI review; Geurts, Bryan A. (GSFC-1401)
Subject: Re: [License-review] For Approval: NASA Open Source Agreement 2.0

On Mon, Jun 24, 2013 at 8:58 PM, Josh Berkus <josh at postgresql.org> wrote:
>
> Yes, I have to wonder: what does "request" mean in terms of a license?
> It seems like it's saying "if you want to", which means that that 
> clause 3.K. is without real force, but I'd like to hear an attorney 
> tell us what "request" means in legalese.

It would be ideal to have Bryan answer this in the context of NASA, but in the meantime, I know of no precedent where "request" would have anything other than the plain language meaning you'd expect it to have. That would be doubly so in this context, which is described as part of an "effort" rather than a requirement or obligation, and uses "please" in the opening section.

Bryan, I'm trying to understand the interaction between 2(A) and 2(B) and was hoping you could answer. Specifically, is the idea that 2(A) covers works covered by 17 USC 105, while 2(B) covers anything not covered by 17 USC 105?

Anyone else have any concerns/thoughts/etc. about the license?

Luis