Cam, Could you describe what the impact would be to contractors under DFARS clauses 252.227-7013/7014 and ARL OSL? In particular where software was developed at private expense or mixed funding and the government has less than unlimited rights.
Regards, Nigel On 8/8/16, 8:32 AM, "License-discuss on behalf of Karan, Cem F CIV USARMY RDECOM ARL (US)" <license-discuss-boun...@opensource.org on behalf of cem.f.karan....@mail.mil> wrote: >The problem is that while the original USG works don't have copyright, >works produced by contributors may. E.g., any code supplied by >contractors, anything provided by persons outside the USG, etc. We need >to have a license that both protects those individuals, and ensures that >they don't use their copyright to harm others. If it were possible to >automatically swap in the Apache 2.0 license whenever and wherever there >was copyright, we'd do that. My understanding from our lawyers is that >we could only do that if the USG owned the code outright; since >contributors are licensing the code to the USG (and to anyone >downstream), switching the license would require asking each contributor >to agree to the change; we couldn't do it automatically. > >Remember, the goal is not just to protect the USG, it is also to protect >all contributors and downstream users of any code from legal headaches. > >As for enforcing the license, there are three ways. If there is >copyright on a piece of work, then the normal copyright enforcement >mechanisms apply. If there is no copyright, the USG can still enforce >trademark rules, forcing a non-compliant contributor or downstream user >to either comply, or make it clear that they have a different piece of >software. Finally, contributors are forming a contract with the USG when >they contribute to USG projects. This should allow the USG to sue if >anyone that breaks the contract; note that this is an as-yet untested >legal theory, and would need to be litigated to be proven true or false. > >Thanks, >Cem Karan > >> -----Original Message----- >> From: License-discuss [mailto:license-discuss-boun...@opensource.org] >>On Behalf Of Kevin Fleming >> Sent: Friday, August 05, 2016 3:48 PM >> To: license-discuss@opensource.org >> Subject: Re: [License-discuss] [Non-DoD Source] Re: US Army Research >>Laboratory Open Source License proposal >> >> All active links contained in this email were disabled. Please verify >>the identity of the sender, and confirm the authenticity of all links >> contained within the message prior to copying and pasting the address >>to a Web browser. >> >> >> ________________________________ >> >> >> >> Thanks for summarizing; I think you and I agree :-) >> >> >> I cannot envision any sort of contract which is designed to allow >>access to the code, with modification, distribution, derivation, and >>other >> permissions, but which also allows the USG to enforce any sort of >>restrictions on those activities (given the lack of copyright). I'm not a >> lawyer, but having been involved on both sides of dozens of open source >>licenses, I know what I (and my employer) would be able to >> understand and accept, and as a result I don't see how such a contract >>would do anything but interfere with adoption of the software >> covered by it. >> >> >> If, as has been mentioned, there are patents and/or trademarks >>involved, then a contract which clearly addresses those aspects, and only >> those aspects, would make much more sense. >> >> >> On Wed, Aug 3, 2016 at 9:29 AM, Maarten Zeinstra <m...@kl.nl < >>Caution-mailto:m...@kl.nl > > wrote: >> >> >> Hi Kevin and Cem, >> >> I think the confusion here is indeed about ownership vs, access, As I >>understand Cem¹s project he wants to provide access to third >> parties to its code and wants to Œlicense¹ it. However open source >>license (afaik) deal with the ownership part of the code and does not >> deal in restricting access to the code. >> >> I think Cem is indeed on the right track with #3 in his reply. You >>cannot rely on copyright, you could only focus on any patent >> aspects of open source license. Coming from the Creative Commons world, >>I do not know about patents in Open Source licenses. >> >> I also think that is near impossible to enforce access limiting >>contracts in a one-to-all way. I wrote an opinion about a related >> situation about the New York Metropolitan Museum that provided free >>downloads of its public domain images but restricted those >> downloads to non-commercial use: >>Caution-https://www.kl.nl/en/opinion/why-the-met-does-not-open-any-real-d >>oors/ < Caution- >> https://www.kl.nl/en/opinion/why-the-met-does-not-open-any-real-doors/ >>> (tl;dr: you cannot enforce general rules about free >> downloads, and it is a bad practise to try to do so). >> >> the USG cannot enforce open source license as they have no underlying >>copyright, any contract drafted that is similar to an open >> source license without the licensing of copyright and limiting the >>access or reuse of the work should not be considered a open source >> license and fall into the category of bad practise. >> >> Re: Berne Convention. Sure Page Miller is right. But try and proof me >>wrong :) but no country in the world has a paragraph in >> their national copyright act that provides the USG with copyright where >>they do not hold that nationally. They would rely on the absence >> of formalities but that means you do need in a rights holder in the >>country of origine, which does not exist. >> >> Regards, >> >> Maarten >> >> -- >> Kennisland | Caution-www.kl.nl < Caution-http://www.kl.nl > | t >>+31205756720 | m +31643053919 | @mzeinstra >> >> >> On 03 Aug 2016, at 15:17, Karan, Cem F CIV USARMY RDECOM ARL >> (US) >><cem.f.karan....@mail.mil < Caution- >> mailto:cem.f.karan....@mail.mil > > wrote: >> >> I just got off the phone with Page Miller in the US Copyright >> office >>(Caution-http://www.copyright.gov/ < Caution- >> http://www.copyright.gov/ > ). She is the person at the USG that >>specializes in these types of questions. She told me that the Berne >> convention does not change laws in individual countries, it just >>removes certain formalities. As such, if the foreign government permits >> the USG to hold copyright in the foreign country, then the USG is >>permitted to do so. You can contact the copyright office at >> copyi...@loc.gov < Caution-mailto:copyi...@loc.gov > . If you put in a >>line like 'Attention: Page Miller', it will get routed to her to >> answer. >> >> So, the very latest position of the USG is that it can apply for >>copyright protections for USG-produced works that have no >> copyright within the US. >> >> Thanks, >> Cem Karan >> >> >> >> -----Original Message----- >> From: License-discuss >>[Caution-mailto:license-discuss-boun...@opensource.org < >>Caution-mailto:license-discuss- >> boun...@opensource.org > ] On Behalf Of Maarten Zeinstra >> Sent: Monday, August 01, 2016 4:36 AM >> To: license-discuss@opensource.org < >>Caution-mailto:license-discuss@opensource.org > >> Cc: lro...@rosenlaw.com < >> Caution-mailto:lro...@rosenlaw.com > >> Subject: Re: [License-discuss] [Non-DoD Source] Re: US >> Army Research >>Laboratory Open Source License proposal >> >> All active links contained in this email were disabled. >> Please >>verify the identity of the sender, and confirm the >> authenticity of all links >> contained within the message prior to copying and >> pasting the >>address to a Web browser. >> >> >> ________________________________ >> >> >> >> I did some further investigating into this. The sources >> that I and >>John refer to are from 1976, which is pre-Berne >> (US in force: March 1, >> 1989). So this would further cast doubts on the claims >> of copyright >>abroad of the US government. >> >> Regards, >> >> Maarten >> >> >> >> -- >> Kennisland | Caution-Caution-www.kl.nl < >>Caution-http://caution-Caution-www.kl.nl > < Caution-Caution- >> http://www.kl.nl > | t +31205756720 | m +31643053919 | @mzeinstra >> >> >> On 01 Aug 2016, at 10:20, Maarten Zeinstra <m...@kl.nl < >>Caution-mailto:m...@kl.nl > < Caution-Caution- >> mailto:m...@kl.nl < Caution-mailto:m...@kl.nl > > > wrote: >> >> Hi Cem, >> >> I believe this was already answered John Cowan, I was >> proven wrong. >>US does assert copyright for government >> works in other >> jurisdictions. Wikipedia provides these sources: >> >> ³The prohibition on copyright protection for United >> States >>Government works is not intended to have any effect >> on protection of >> these works abroad. Works of the governments of most >> other countries >>are copyrighted. There are no valid policy >> reasons for denying >> such protection to United States Government works in >> foreign >>countries, or for precluding the Government from >> making licenses for the >> use of its works abroad.² - House Report No. 94-1476 >> >> and >> >> ³3.1.7 Does the Government have copyright protection >> in U.S. >>Government works in other countries? >> Yes, the copyright exclusion for works of the U.S. >> Government is not >>intended to have any impact on protection of >> these works >> abroad (S. REP. NO. 473, 94th Cong., 2d Sess. 56 >> (1976)). Therefore, >>the U.S. Government may obtain protection >> in other countries >> depending on the treatment of government works by the >> national >>copyright law of the particular country. >> Copyright is sometimes >> asserted by U.S. Government agencies outside the United >> States.² >>Caution-Caution- >> http://www.cendi.gov/publications/04-8copyright.html#317 < >> >> >> Caution-Caution-http://www.cendi.gov/publications/04-8copyright.html#3 >>17 > >> >> However I am not sure how this would work with the >> Berne Convention, >>especially article 7(8) which states: Œ[..] >> the term shall be >> governed by the legislation of the country where >> protection is >>claimed; however, unless the legislation of that >> country otherwise provides, >> the term shall not exceed the term fixed in the country >> of origin of >>the work.¹ If the U.S. term of protection is 0 >> years, than other countries >> would also apply 0 years. >> >> @John, @Cem: do you have some case law about this? I >> would like to >>verify this with my academic network in >> the U.S. If not, any >> license you want to apply on this material is >> immediately void >>(which is only a theoretical problem imo). >> >> Regards, >> >> Maarten >> >> -- >> Kennisland | Caution-Caution-www.kl.nl < >>Caution-http://caution-Caution-www.kl.nl > < Caution-Caution- >> http://www.kl.nl/ > | t +31205756720 | m +31643053919 | @mzeinstra >> >> >> On 29 Jul 2016, at 19:37, Karan, Cem F CIV USARMY >> RDECOM ARL (US) >><cem.f.karan....@mail.mil < Caution- >> mailto:cem.f.karan....@mail.mil > < Caution- >> Caution-mailto:cem.f.karan....@mail.mil < >>Caution-mailto:cem.f.karan....@mail.mil > > > wrote: >> >> I'm sorry for getting back late to this, the lawyer I'm >> working with >>was called away for a bit and couldn't reply. >> >> I asked specifically about this case; in our lawyer's >> opinion, the >>US Government does have copyright in foreign (to >> the US) >> countries. He says that there is case law where the US >> has asserted >>this, but he is checking to see if he can find >> case law regarding this to >> definitively answer the question. >> >> Thanks, >> Cem Karan >> >> >> >> -----Original Message----- >> From: License-discuss >>[Caution-Caution-mailto:license-discuss-boun...@opensource.org < >>Caution-mailto:license- >> discuss-boun...@opensource.org > < >>Caution-Caution-mailto:license-discuss- < >>Caution-mailto:license-discuss- > >> boun...@opensource.org < >> Caution-mailto:boun...@opensource.org > > >>] On Behalf Of Maarten Zeinstra >> Sent: Sunday, July 24, 2016 7:49 AM >> To: license-discuss@opensource.org < >>Caution-mailto:license-discuss@opensource.org > < Caution-Caution- >> mailto:license-discuss@opensource.org < >>Caution-mailto:license-discuss@opensource.org > > >> Cc: lro...@rosenlaw.com < >> Caution-mailto:lro...@rosenlaw.com > < >>Caution-Caution- >> mailto:lro...@rosenlaw.com < Caution-mailto:lro...@rosenlaw.com > > >> Subject: [Non-DoD Source] Re: [License-discuss] US Army >> Research >>Laboratory Open Source License proposal >> >> All active links contained in this email were disabled. >> Please >>verify the identity of the sender, and confirm the >> authenticity of all links >> contained within the message prior to copying and >> pasting the >>address to a Web browser. >> >> >> ________________________________ >> >> >> >> Hi, >> >> Yes I am suggesting that if the country of origin of >> the work does >>not assign copyright to the work then no >> copyright is assigned world- >> wide. My reasoning is that there is no entity to assign >> that >>copyright to. >> >> An example in a different field might support my >> argument. >> >> In the Netherlands we automatically assign (not >> transfer, which is >>important here) any IP rights of the employee >> to the employer if works >> are created within the duties of the employee. That >> means that the >>employer is the rights holder. This rights >> holder is consequently also >> recognised as the rights holder in other jurisdictions. >> Who might, >>given a similar situation in their own >> jurisdiction, normally assign the >> right to the employee. >> >> Now if there is no rights holder to begin with (the >> U.S. waives it >>rights on government produced works as I >> understand, the Netherlands >> government does the same), then no foreign rights can >> be assigned as >>well. Hence the work must be in the public >> domain world wide. >> >> I have more experience with Creative Commons-licenses >> than with Open >>Source license, but in CC licenses the >> license exists for the >> duration of the right. I assume all Open Source >> licenses are >>basically the same in this regard. In that sense it does >> not matter which license >> is applied as the license is immediately void, since >> there is no >>underlying right to license. >> >> Finally, in the past I have advised the dutch >> government to adopt >>CC0 to make the public domain status of their >> works clear. They have >> adopted this since ~2011 on their main site: >>Caution-Caution-Caution-https://www.government.nl/copyright < >> caution- >> Caution-Caution-https://www.government.nl/copyright > >> < Caution- >> Caution-Caution-https://www.government.nl/copyright < >>Caution-Caution-https://www.government.nl/copyright >> > > (english >> version). I advise the US army does something similar >> as well. >> >> Regards, >> >> Maarten Zeinstra >> >> -- >> Kennisland | Caution-Caution-Caution-www.kl.nl < >>Caution-http://caution-caution-Caution-www.kl.nl > < >> Caution-Caution-http://caution-Caution-Caution-www.kl.nl/ > < >>Caution-Caution- >> Caution-http://www.kl.nl < Caution-http://www.kl.nl > < >>caution-Caution-Caution-http://www.kl.nl > > | t >> +31205756720 | m +31643053919 | @mzeinstra >> >> >> On 24 Jul 2016, at 08:26, Philippe Ombredanne >> <pombreda...@nexb.com >>< Caution- >> mailto:pombreda...@nexb.com > < Caution- >> Caution-mailto:pombreda...@nexb.com < >>Caution-mailto:pombreda...@nexb.com > > < Caution-Caution- >> Caution-mailto:pombreda...@nexb.com < >>Caution-mailto:pombreda...@nexb.com > < Caution-Caution- >> mailto:pombreda...@nexb.com < Caution-mailto:pombreda...@nexb.com > > >>> > >> wrote: >> >> On Fri, Jul 22, 2016 at 11:23 PM, Lawrence Rosen >><lro...@rosenlaw.com < Caution-mailto:lro...@rosenlaw.com >> > < Caution-Caution-mailto:lro...@rosenlaw.com < >>Caution-mailto:lro...@rosenlaw.com > >> >> >> < >> Caution-Caution-Caution-mailto:lro...@rosenlaw.com < >>Caution-mailto:lro...@rosenlaw.com > < >> Caution-Caution-mailto:lro...@rosenlaw.com < >>Caution-mailto:lro...@rosenlaw.com > > > > wrote: >> >> >> >> >> >> It is true that this public domain result doesn't apply >> outside the >>U.S. But >> if you apply a valid open source license to it such >> as Apache 2.0 >> that >> should be good enough for everyone who doesn't live in >> the U.S. and >> irrelevant for us here. >> >> >> >> Larry, are you suggesting that Cem considers using >> some statement >>more >> or less like this, rather than a new license? >> This U.S. Federal Government work is not copyrighted >> and dedicated >> to the public domain in the USA. Alternatively, the >> Apache-2.0 >> license applies >> outside of the USA ? >> >> On Sat, Jul 23, 2016 at 9:51 AM, Maarten Zeinstra >> <m...@kl.nl < >>Caution-mailto:m...@kl.nl > < Caution-Caution- >> mailto:m...@kl.nl < Caution-mailto:m...@kl.nl > > < Caution-Caution- >> Caution-mailto:m...@kl.nl < Caution-mailto:m...@kl.nl > >> < >>Caution-Caution-mailto:m...@kl.nl < Caution- >> mailto:m...@kl.nl > > > > wrote: >> >> >> >> Is that the correct interpretation of the Berne >> convention? The >>convention >> assigns copyright to foreigners of a signatory state >> with at least >>as strong >> protection as own nationals. Since US government does >> not attract >>copyright >> I am unsure if they can attract copyright in other >> jurisdictions. >> >> >> >> Maarten, are you suggesting then that the lack of >> copyright for a >>U.S. Federal >> Government work would just then apply elsewhere too and >> that using an >> alternative Apache license would not even be needed? >> >> -- >> Cordially >> Philippe Ombredanne >> >> +1 650 799 0949 | pombreda...@nexb.com < >>Caution-mailto:pombreda...@nexb.com > < Caution-Caution- >> mailto:pombreda...@nexb.com < Caution-mailto:pombreda...@nexb.com > > >>< Caution-Caution- >> Caution-mailto:pombreda...@nexb.com < >>Caution-mailto:pombreda...@nexb.com > < Caution-Caution- >> mailto:pombreda...@nexb.com < Caution-mailto:pombreda...@nexb.com > > >>> >> DejaCode : What's in your code?! at >>Caution-Caution-Caution-http://www.dejacode.com < caution-Caution- >> Caution-http://www.dejacode.com < >> Caution-http://www.dejacode.com > >>> < Caution-Caution-Caution- >> http://www.dejacode.com < >>caution-Caution-Caution-http://www.dejacode.com > > >> nexB Inc. at >> Caution-Caution-Caution-http://www.nexb.com < >>caution-Caution-Caution-http://www.nexb.com > >> < Caution- >> Caution-Caution-http://www.nexb.com < >>caution-Caution-Caution-http://www.nexb.com > > >> _______________________________________________ >> License-discuss mailing list >> License-discuss@opensource.org < >>Caution-mailto:License-discuss@opensource.org > < Caution-Caution- >> mailto:License-discuss@opensource.org < >>Caution-mailto:License-discuss@opensource.org > > < Caution-Caution- >> Caution-mailto:License-discuss@opensource.org < >>Caution-mailto:License-discuss@opensource.org > < Caution- >> Caution-mailto:License-discuss@opensource.org < >>Caution-mailto:License-discuss@opensource.org > > > >> >> >> Caution-Caution-Caution-https://lists.opensource.org/cgi-bin/mailman/l >>istinfo/license-discuss < caution-Caution- >> >> >> Caution-https://lists.opensource.org/cgi-bin/mailman/listinfo/license- >>discuss < Caution- >> https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss > >> > >> >> >> >> >> >> _______________________________________________ >> License-discuss mailing list >> License-discuss@opensource.org < >>Caution-mailto:License-discuss@opensource.org > < Caution-Caution- >> mailto:License-discuss@opensource.org < >>Caution-mailto:License-discuss@opensource.org > > >> >> >> Caution-Caution-https://lists.opensource.org/cgi-bin/mailman/listinfo/ >>license-discuss < Caution-Caution- >> https://lists.opensource.org/cgi- >> bin/mailman/listinfo/license-discuss > >> >> >> >> >> >> _______________________________________________ >> License-discuss mailing list >> License-discuss@opensource.org < >>Caution-mailto:License-discuss@opensource.org > >> >> >> Caution-https://lists.opensource.org/cgi-bin/mailman/listinfo/license-d >>iscuss < Caution-https://lists.opensource.org/cgi- >> bin/mailman/listinfo/license-discuss > >> >> >> >> >> _______________________________________________ >> License-discuss mailing list >> License-discuss@opensource.org < >>Caution-mailto:License-discuss@opensource.org > >> >> Caution-https://lists.opensource.org/cgi-bin/mailman/listinfo/license-di >>scuss < Caution-https://lists.opensource.org/cgi- >> bin/mailman/listinfo/license-discuss > >> >> >> > _______________________________________________ License-discuss mailing list License-discuss@opensource.org https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss
