[License-review] Fwd: [Non-DoD Source] Resolution on NOSA 2.0

[Bruce Perens]

OK, here's my first pass at marking up the NASA license 2.0

*NASA OPEN SOURCE AGREEMENT VERSION 2.0*

*This open source agreement (“Agreement”) defines the rights of use,
reproduction, modification and redistribution of certain software*
*released by the United States Government (“Government”) as represented by
the Government Agency listed below (“Government Agency”).*

Although I would not actually *recommend *that any entity other than the
United States Government make use of this license, it doesn't make sense to
have a license that* requires *that the project be originated by only one
legal entity, the United States Government. Should OSI then accept licenses
that require the project to be originated by Canada and 210 other nations,
and by IBM and a large number of other corporations? It wouldn't make sense
for OSI or the developer community. I think you can make this text work for
the government or another contributor without losing any of the legal
protection you wish to have.

*The United States Government, as represented by Government Agency, is an
intended third-party beneficiary of all subsequent redistributions of the
Subject Software.*

Please explain what "intended third-party beneficiary" means in this
context. Why is it necessary for the U.S. Government to be this
beneficiary, rather than all of the contributors?

*Anyone who uses, reproduces, modifies or redistributes the Subject
Software, as defined herein, or any part thereof, is, by that action,
accepting in full the responsibilities and obligations contained in this
Agreement. *

*Government Agency: ______________________________________________________ *
*Government Agency Original Software Designation:
_____________________________*
*Government Agency Original Software Title & Ver. No. :
_________________________*
*Government Agency Point of Contact:
________________________________________*


*User Registration Requested.  Please Visit
http://________________________________*
How about:
Government Agency or Other Entity:
Original Software Designation:
Original Software Title and Version Number:
Point of Contact:
User Registration Requested. Please Visit https://

*1. DEFINITIONS*

*A. “Contributor” means Government Agency and any other person or entity
that creates or contributes to the creation of Subject Software.*

Shouldn't "and" be "or" here? Otherwise, it rules out any contribution
without participation of a Government Agency.



*B. “Contribution” means any Work, including Your own Works and Works of
other Contributors, that are Derivative Works of the Subject Software and
that are intentionally submitted by You or other Contributors to Government
Agency for inclusion in, or documentation of, the Subject Software.*
This definition doesn't work, because a contribution need not be a
derivative work of the subject software. It can be completely independent
of the subject software except for some small glue combining it with the
subject software that can not be copyrighted because it's entirely
functional. Consider, for example, that I have authored a Fourier transform
library, have previously published it as Open Source, and that I add it to
the subject software as a resource that can be called by functions in the
subject software. It would not be derivative. If anything, the subject
software might become derivative of it.

*C. “Covered Patents” means any patent claims licensable by a Contributor
that are necessarily infringed by the manufacture, import, use, offer for
sale, or sale of a Contributor’s Derivative Works or Contributions alone or
when combined with the Subject Software.*

Is this intended to be a strong or a weak patent clause? If it's on the
strong side, any modification of the subject software *after *the
contribution that necessarily makes use of the patent claim is covered. If
weak, only the patent claim *exactly *as exercised in the contribution by
the patent holder is covered. Some corporations that own patent portfolios
are loath to join into licenses with strong patent clauses, but will accept
weak ones. I am no fan of software patents, it's just my duty to inform you.


D. “Derivative Work” means a Work that is based on (or derived from) the
Subject Software and for which the revisions, annotations, or other
modifications, as a whole, represent an original work of authorship.

This is circular: *derivative work* is *derived from. *A derivative work
combines two or more original works of authorship. GPL 3 specifically
avoids defining anything that legislation or case law would define for the
court. So, it uses "combined work" and "modifications". You have already
defined Contribution and can probably define a Combined Work of the Initial
Work (you call it "Original Software", but "Initial Work" is less
confusing) and Contributions without contradicting some court on what is or
is not derivative.



*Derivative Works shall not include (i) Works that remain separate from, or
merely link to, the Subject Software,*
This contradicts the court's ruling in *Oracle v. Google *on whether calls
to an API can be derivative. The next case may rule differently, but it's a
gray area right now*. *The license text should avoid argument with courts,
especially on recent cases, so I would suggest "combined work" as above.



*or (ii) additions to the Subject Software which are separable modules of
software distributed in conjunction with the Subject Software,*
You need a better definition of a separable module, or this is going to be
reason for long argument at great expense regarding what is or is not
separable, if this license goes to court. Arguably it's Open Source and
everything is separable since it can be edited into separate units by using
spme finite number of edits. Do you want to talk about APIs, etc?



*or parts of the Subject Software, under their own license agreement.*
This is unclear. I think you mean that Contributions that have their own
license are not part of your combined work, but you might even be
contradicting yourself because the Initial Work qualifies under this
definition and thus we might be saying that Contributions are not
Derivative Works of it.

*Including Subject Software or parts thereof in a Larger Work is not in and
of itself a Derivative Work.*

This definition incorporates "Larger Work" before you have defined it.

*E. “Larger Work” means software that combines Subject Software, or
portions thereof, with software that remains separate from, or is merely
linked to, the Subject Software and that is not governed by the terms of
this Agreement.*

So, here we're defining a larger work as *either *aggregation (for example,
storage of separate programs on a disk medium) or a program that is linked
(static or dynamic does not matter, apparently). Thus applying one word to
two entirely different things. What you should do here is define
aggregation, and then make your language on separability above make it
clear that an API is the boundary of a separable module. This language is
also circular several times. Larger Work is included in the definition of
Derivative Works. What is *governed by the terms of this agreement* is the
Subject Software, which includes the definition of Derivative Works and
Larger Work (for negation). And so on. You can say Subject Software (or I
would prefer Combined Work) instead of relying on whether the module is
governed by the terms of this agreement.

*F. “Original Software” means the software first released under this
Agreement by Government Agency with the Government Agency designation and
title listed above, including source code, object code and accompanying
documentation, if any.*

I think "Initial Work" is less confusing. Other licenses use that term.
Also, this definition is exclusive to Government and I don't see that this
is necessary simply to define an initial work.

*G.  “Subject Software” means the Original Software, Derivative Works, or
 Contributions, and any combination or respective parts thereof.*

What you mean to do here is define a Combined Work. If you did that and
used "Combined Work" rather than "Subject Software" throughout the license
text, people would understand better what you are talking about.

*H. “Work” means an original work of authorship fixed in a tangible medium
of expression,*

*now known or later developed, from which it can be perceived, reproduced,
or otherwise communicated, either directly or with the aid of a machine or
device, including Derivative Works.*

I would have thought that *"Work" means an original work of authorship
fixed in a tangible medium of expression" *was sufficient, and that you
would not have to go on to attempt to define fixation for yourself,
including mentioning that some media might not yet exist but that this
license would still apply to them, as if someone could create a new storage
medium that copyright did not apply to.

*A work is original if it is independently created by You, as opposed to
copied from other works, and it possesses at least some minimal degree of
creativity. *

This is only necessary because you're trying to define derivative works
separately from existing legislation and case law. If you use "Combined
Work" you don't have to argue about originality, and you can separately
define what is separable and be done with it.

*I. “You” or “Your” means an individual or a legal entity exercising rights
under, and complying with all the terms of, this Agreement. For legal
entities, “You” or “Your” includes an entity and any other entity that
controls, is controlled by, or is under common control with such entity.
For the purposes of this definition, “control” means (i) the power, direct
or indirect, to cause the direction or management of such entity, whether
by contract or otherwise, or (ii) ownership of fifty percent (50%) or more
of the outstanding shares, or (iii) beneficial ownership of such entity.*

*2. GRANT OF RIGHTS YOU RECEIVE (FROM UPSTREAM CONTRIBUTORS) ALONG WITH
YOUR GRANT OF RIGHTS AND OBLIGATIONS IF YOU MAKE DERIVATIVE WORKS OF OR
REDISTRIBUTE THE SUBJECT SOFTWARE (TO DOWNSTREAM RECIPIENTS)*
*A. Subject to, and, so long as You comply with, the terms and conditions
of this Agreement, the Government hereby grants permission to You to use
civil servant authored U.S. Government Work (17 U.S.C. § 105) portions of
the Subject Software, if any, in the United States.*

17 USC * § *105 says this:

*Copyright protection under this title is not available for any work of the
United States Government
<https://www.law.cornell.edu/definitions/uscode.php?width=840&height=800&iframe=true&def_id=17-USC-590005605-364936160&term_occur=2&term_src=title:17:chapter:1:section:105>,
but the United States Government is not precluded from receiving and
holding copyrights transferred to it by assignment, bequest, or otherwise. *

This particular section of copyright law *does not* establish that NASA has
any right to *deny *permission to use civil servant authored U.S.
Government Work that is not classified. If you want to give that
permission, please show us what law establishes that right for the U.S.
Government.



*B. Under Non Patent Rights/Copyright License:  Subject to, and, so long as
You comply with, the terms and conditions of this Agreement, each
Contributor hereby grants to You (with respect to the Subject Software and
its Contributions to or Derivative Works of the Subject Software) and You
hereby grant to each recipient (with respect to Your Contributions to and
Derivative Works of the Subject Software, as defined in Paragraphs 1.B and
1.C) a non-exclusive, worldwide, royalty-free, irrevocable (except as
stated in Paragraphs 3.J and 5.A) license to use,  reproduce, modify,
redistribute, prepare Derivative Works of, publicly display, publicly
perform, and sublicense the Subject Software.*

*C. Under Patent Rights:  Subject to, and, so long as You comply with, the
terms and conditions of this Agreement, each Contributor hereby grants to
You (with respect to the Subject Software and its Contributions to or
Derivative Works of the Subject Software) and You grant to each recipient
(with respect to Your Contributions to and Derivative Works of the Subject
Software, as defined in Paragraphs 1.B and 1.C) a non-exclusive, worldwide,
royalty-free, irrevocable (except as stated in Paragraphs 3.J and 5.A)
license with respect to its Covered Patents to make, have made, use,
redistribute, reproduce, sell, offer to sell, import, sublicense and
otherwise transfer the Subject Software.*
This is the strong patent clause. See Larry's comments at
https://www.rosenlaw.com/lj9.htm

*Irrevocable except* is awkward. If someone sues, just terminate their
license. State here that the patent grant terminates if the license
terminates.

*3. ADDITIONAL OBLIGATIONS IF YOU MAKE DERIVATIVE WORKS OF OR REDISTRIBUTE
THE SUBJECT SOFTWARE*
*A. Contributions.*


*1.  Submission. Unless You explicitly state otherwise, any Contribution
intentionally submitted for inclusion in Subject Software by You to the
Government Agency shall be governed by the terms and conditions of this
Agreement, without any additional terms or conditions. Notwithstanding the
above, nothing herein shall supersede or modify the terms of any separate
agreement you may have executed with the U.S. Government regarding such
Contributions.*
Please explain what happens to the global Open Source community other than
the U.S. Government when a the contributor has a separate agreement with
the Government. What license applies to everyone else?



*2.  Representation.  You represent that each of Your Contributions is Your
own Work or is the Work of another Contributor that You are authorized to
submit.*
By "authorized to submit", are you saying that I can contribute a work by
someone else that is under a compatible Open Source license? Because that
would solve one fundamental objection to the license. Or do you simply mean
that I can contribute my employer's work if they've explicitly authorized
me to do so (in which case they should really be the ones entering into the
license, because they own the patent rights, and we want to make sure those
come under the license).

*You represent that Your submission(s) of Contributions that are the Work
of another Contributor, that You are authorized to submit, include complete
details of any agreements, licenses, or other restriction (including, but
not limited to, related copyright, patents and trademarks) of which You are
aware that will impose additional terms and conditions on the Subject
Software. *

*B. Redistribution.  You may redistribute the Subject Software, with or
without Your Derivative Works or Contributions, provided that You meet the
following conditions:  *
*   1. Whenever You redistribute the Subject Software, You must include a
copy of this Agreement with each copy of the Subject Software; and*
*   2. You may redistribute Your Derivative Works or Your Contributions
under this Agreement or under a license that includes additional or
different terms provided it otherwise complies with the terms and
conditions provided in this Agreement; and*


*   3. If You redistribute the Subject Software in any form other than
source code, You must also make the source code freely available, and must
provide with each copy of the Subject Software information on how to obtain
the source code in a reasonable manner on or through a medium customarily
used for software exchange; and*


*4. If You choose to offer services under Paragraph 3.G, such services must
be covered under a separate agreement.*
This is advisory*, *because this agreement does not offer services.

*C. You must ensure that the following copyright notice appears prominently
in the Subject Software:*
*[GOVERNMENT AGENCY WILL INSERT THE APPLICABLE COPYRIGHT NOTICE ALONG WITH
ANY OTHER REQUIRED NOTICES IN EACH AGREEMENT ACCOMPANYING THE INITIAL
DISTRIBUTION OF ORIGINAL SOFTWARE AND REMOVE THIS BRACKETED LANGUAGE.]*
*[The following copyright notice may be used if created in whole or in part
by a non-federal entity and rights obtained from author/copyright holder by
assignment.  Government Agency will insert the year and its Agency
designation and remove the bracketed language.]  *
*      Copyright  {YEAR} United States Government as represented by
_______________________________.  All Rights Reserved.*
*[The following copyright notice may be used if created by civil servants
only. Government Agency will insert the year and its Agency designation and
remove the bracketed language.]  *
*      Copyright  {YEAR} United States Government as represented by
__________________________________________.  No copyright is claimed in the
United States under Title 17, U.S. Code. All Other Rights Reserved.*

Can you please come up with one statement that works for everyone?
Otherwise, we have the issue of "Invariant Sections" which could include
arbitrary rants, advertising, etc. And it makes it difficult to use the
license because developers don't know which block to use where. How about:

Copyright (C) {YEAR}. Where work is the product of a civil servant employed
by the U.S. Government, The U.S. Government does not claim copyright. Where
work is created by a non-federal entity or assigned to the U.S. Government
by a non-federal entity, copyright is claimed and all rights are reserved
except as granted by the NASA Open Source License version 2.0 .

Go ahead and rewrite that, but make it one text only, please.

*D. You must include in any of Your Derivative Works or Contributions a
notice that describes the alterations made and the date of the alterations,
identifies You as Contributor of the Derivative Work or Contribution, and
includes a statement that the Derivative Work or Contribution is derived,
directly or indirectly, from Original Software provided by Government
Agency. *

I notice that some licenses require this, and in general developers *do not
comply* and write in the dates and description of the alterations. But they
*do* use revision control systems like *git *which provide this
information, so it's not terribly useful to ask for it to be entered
manually in the license. It's enough for ask them to get the attribution
and the copyright statements right. You need to help them as much as
possible just to get them to do that, they don't have intellectual property
training. Thus the single text block I ask for above.

*E. Once a copyright notice has been added to the Subject Software, You may
not remove it without the express permission of the Contributor who added
the notice.  You may add Your own copyright notice to the Subject Software.
*

So, I can't correct the attribution and copyright notice when they're
wrong? Change this to "you must maintain correct attribution and copyright
notices, and you may add your own".

*F. You may not make any representation in the Subject Software or in any
promotional, advertising or other material that may be construed as an
endorsement by Government Agency or by any other Contributor or recipient
of any product or service provided by You, or that may seek to obtain
commercial advantage of Government Agency's or any other recipient’s
participation in this Agreement.*

*G. You may choose to offer, and to charge a fee for, warranty, indemnity
and/or liability obligations to one or more other recipients of the Subject
Software.  You may do so, however, only on Your own behalf and not on
behalf of Government Agency or any other Contributor.  You must make it
absolutely clear that any such warranty, indemnity and/or liability
obligation is offered by You alone.  Further, You agree to indemnify
Government Agency and every other Contributor for any liability incurred by
them as a result of warranty, indemnity and/or liability offered by You.*

*H. You may create a Larger Work by combining Subject Software with
separate software not governed by the terms and conditions of this
Agreement and redistribute the Larger Work as a single product. In such
case, You must make sure Subject Software, or portions thereof, included in
the Larger Work is licensed under this Agreement or a license that complies
with the terms and conditions provided in this Agreement.*



*I. Notwithstanding any provisions contained herein, You are hereby put on
notice that export of any goods or technical data containing all or part of
the Subject Software from the United States may require some form of export
license from the U.S. Government.  Government Agency makes no
representation as to whether an export license is required nor that, if
required, it will be issued.  Nothing granted herein provides any such
export license.*
This is much more likely for physical goods. Without going into a longer
explanation, technical data that is Open Source is in general "public
domain" under ITAR 120.11 and "published" under EAR 734.7 (with the caveat
that cryptography software must have available source and a notification
must be made under EAR 742.15). It might be more acceptable to advise them
to specifically check ITAR and EAR in the U.S. and then phrase this as that
there is no *guarantee *that export won't require a government license or
that one will be issued, wherever you are, not just the U.S.


*J. If any recipient institutes patent or copyright litigation against
Government Agency or any other recipient (including a cross-claim or
counterclaim in a lawsuit) alleging that the Subject Software, part of the
Subject Software, or a Contribution incorporated within the Subject
Software constitutes direct or indirect patent infringement or copyright
infringement, then any patent and copyright licenses granted to the
litigating recipient under this Agreement for the Subject Software shall
terminate as of the date such litigation is filed.*



*K. [This paragraph may be included or deleted at the option of the
Government Agency releasing the Original Software.] In an effort to track
usage and maintain accurate records of the Subject Software, You, upon
receipt of the Subject Software, are requested to register with Government
Agency by visiting the website provided above (if any) or by e-mail to the
Point of Contact listed above.  Your name and personal information shall
not be disclosed outside of the Government and its contractors. Once You
make a Derivative Work or Contribution available, it is requested that You
inform Government Agency, through the website or Point of Contact provided
above, how to access the Derivative Work or Contribution.*
Please make the paragraph permanent, and make the request conditional on
whether the licensor filled in the URL at the top of the license text.

*4. DISCLAIMER OF WARRANTIES, NON-ENDORSEMENT AND LIMITATION OF LIABILITIES*


*A. Disclaimer of Warranty:  GOVERNMENT AGENCY PROVIDES THE SUBJECT
SOFTWARE (AND EACH CONTRIBUTOR PROVIDES ITS DERIVATIVE WORK OR
CONTRIBUTION) “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, EITHER EXPRESSED,
IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY THAT THE
SUBJECT SOFTWARE WILL CONFORM TO SPECIFICATIONS, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR FREEDOM FROM
INFRINGEMENT, ANY WARRANTY THAT THE SUBJECT SOFTWARE WILL BE ERROR FREE, OR
ANY WARRANTY THAT DOCUMENTATION, IF PROVIDED, WILL CONFORM TO THE SUBJECT
SOFTWARE. FURTHER, GOVERNMENT AGENCY DISCLAIMS ALL WARRANTIES AND
LIABILITIES REGARDING THIRD-PARTY SOFTWARE, IF PRESENT IN THE ORIGINAL
SOFTWARE, AND DISTRIBUTES IT “AS IS.”*


*B. Non-Endorsement:  THIS AGREEMENT DOES NOT, IN ANY MANNER, CONSTITUTE AN
ENDORSEMENT BY GOVERNMENT AGENCY OR ANY OTHER CONTRIBUTOR OF ANY RESULTS,
RESULTING DESIGNS, HARDWARE, SOFTWARE PRODUCTS OR ANY OTHER APPLICATIONS
RESULTING FROM USE OF THE SUBJECT SOFTWARE.  *


*C. Limitation of Liability: YOU AGREE TO WAIVE ANY AND ALL CLAIMS AGAINST
THE UNITED STATES GOVERNMENT, ITS CONTRACTORS AND SUBCONTRACTORS, AS WELL
AS ANY OTHER CONTRIBUTOR, ARISING FROM OR RELATED TO USE OR REDISTRIBUTION
OF THE SUBJECT SOFTWARE. YOU ARE SOLELY RESPONSIBLE FOR DETERMINING THE
APPROPRIATENESS OF USING OR REDISTRIBUTING THE SUBJECT SOFTWARE AND ASSUME
ANY RISK ASSOCIATED WITH YOUR EXERCISE OF RIGHTS GRANTED UNDER THIS
AGREEMENT.*
There are some cases in which requiring that the licensee waive all claims
might not be lawful. For example, if U.S. Government infringes someone
else's copyright in the Initial Work. Many licenses limit this with "*TO
THE EXTENT ALLOWED BY LAW,* YOU AGREE..."

*5. GENERAL TERMS*
*A. Termination:  This Agreement and the rights granted hereunder will
terminate automatically if You fail to comply with these terms and
conditions and fail to cure such noncompliance within thirty (30) days of
such noncompliance.  Upon termination, You agree to immediately cease use
and redistribution of the Subject Software.  All sublicenses to the Subject
Software properly granted by You shall survive any such termination of this
Agreement.*
*B. Applicable Law:  This Agreement shall be subject to United States
Federal law for all purposes, including, but not limited to, determining
the validity of this Agreement, the meaning of its provisions and the
rights, obligations and remedies of the parties.*


*NOSA Ver 2 final draft clean 2013Mar26*
Sorry this is so much. Thanks for asking.

    Thanks

    Bruce
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