[License-review] Review for the NIST Software License

Tue Sep 30 16:39:55 UTC 2025

It is only works authored by government employees in the scope of their 
employment that are dedicated to the public. There may also be code 
written by third parties, contractors for example, that would still be 
protected by copyright. The U.S. government can (and sometimes will 
<https://law.justia.com/cases/federal/district-courts/FSupp2/115/1089/2580278/>) 
enforce copyright that has been assigned to them.

Pam

Pamela S. Chestek
Chestek Legal
4641 Post St.
Unit 4316
El Dorado Hills, CA 95762
+1 919-800-8033
pamela at chesteklegal.com
www.chesteklegal.com

On 9/30/2025 8:05 AM, McCoy Smith wrote:
>
> It's always been the position of the US government that although by 
> statute (https://www.law.cornell.edu/uscode/text/17/105) 
> government-created works may not be copyrighted in the USA, they may 
> be protected by copyright outside the USA: 
> https://www.usa.gov/government-copyright. USG may also hold copyright 
> in assigned works.
>
> It also seems to me like 5(2) of Berne provides protection even if 
> country of origin denies it: 
> https://www.law.cornell.edu/treaties/berne/5.html
>
> It's an interesting question as to whether the disclaimers are 
> effective in the USA if there are no copyright rights to be granted in 
> the USA. Not sure I know the answer to that, although I suspect in the 
> USA you would not need to follow the attribution requirements.
>
> Nevertheless, Lucas, I think you need to complete all the formalities 
> for submission for approval of this license:
>
> https://opensource.org/licenses/review-process
>
> Since you've submitted it as a legacy approval, you at least need to 
> do the following:
>
>
> Describe what gap not filled by currently existing licenses that the 
> new license will fill.
> Compare it to and contrast it with the most similar OSI-approved 
> license(s).
> Describe any legal review the license has been through, including 
> whether it was drafted by a lawyer.
>
> On 9/30/2025 1:57 AM, Carlo Piana via License-review wrote:
>> Lucas,
>>
>> if I understand correctly, this should not technically be a license, 
>> since the software is not subject to copyright in the USA as far as 
>> it has been created by NIST employees. I think that if software is 
>> not given protection in the state of first publication is not 
>> protected even elsewhere, under the Berne Convention, therefore this 
>> is basically a dedication to public domain, whose primary scope is 
>> the liability disclaimer(s).
>>
>> However, the "provided that you keep intact this entire notice" is 
>> technically (US lawyers please help) a condition, that means this is 
>> a license with conditional grant, after all. The other condition-like 
>> provision uses the verb "should", which is more of an invite,  at 
>> face value.
>>
>> I do not see anything that would prevent this text to be approved, 
>> maybe in the "non reusable" category. But could NIST give us their 
>> position on the above discussion, for the sake of clarity, please?
>>
>> Cheers
>>
>> Carlo (in his personal provisional view and capacity)
>>
>>
>> ------------------------------------------------------------------------
>>
>>     *Da: *"Hale, Lucas M. (Fed) via License-review"
>>     <license-review at lists.opensource.org>
>>     *A: *"license-review at lists.opensource.org"
>>     <license-review at lists.opensource.org>
>>     *Cc: *"Hale, Lucas M. (Fed)" <lucas.hale at nist.gov>
>>     *Inviato: *Lunedì, 29 settembre 2025 22:13:02
>>     *Oggetto: *[License-review] Review for the NIST Software License
>>
>>     Hi OSI reviewers!
>>
>>     I would like to submit the National Institute of Standards and
>>     Technology (NIST) Software license for review to be included in
>>     your list.  This is the primary license that NIST staff are
>>     expected to use when releasing software.
>>
>>     The license complies with the Open Source Definition, including
>>     the OSD 3, 5, 6 and 9 criteria.
>>
>>     There are numerous projects using the NIST software.  For
>>     instance, there are 1.3K repositories at
>>     https://github.com/usnistgov that should all be using the
>>     license.  As such, it falls under the legacy category.
>>
>>     The NIST license is also listed on the main NIST website
>>     https://www.nist.gov/open/copyright-fair-use-and-licensing-statements-srd-data-software-and-technical-series-publications,
>>     and has an SPDX listing
>>     https://spdx.org/licenses/NIST-Software.html. Under both sites,
>>     it is titled “NIST Software License”
>>
>>     Thank you for your time and consideration!
>>
>>     Sincerely,
>>
>>     Lucas Hale
>>
>>
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