Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Smith, McCoy]

USG patents aren't public domain, and USG can and does license them for 
royalties.
I believe there are a handful of examples of USG filing infringement suits as 
well.

> On Aug 18, 2016, at 8:26 PM, Brian Behlendorf  wrote:
> 
> 
> Do those follow the same rules as copyright?  E.g., when done by a USG 
> employee, it's public domain in the US?
> 
> Seems like those should get covered by whatever folks come up with.
> 
> Brian
> 
>> On Fri, 19 Aug 2016, Smith, McCoy wrote:
>> Yes
>> USG files patents all the time
>> 
>>> On Aug 18, 2016, at 5:51 PM, Brian Behlendorf  wrote:
>>> 
>>> 
>>> Totally agree.  But can the USG file patents?  I suppose research 
>>> organizations can (MITRE, maybe even NASA?) so it's not that academic; but 
>>> presumably any place where this public domain arises, it applies to patents 
>>> too.  Would be nice to get that sorted.
>>> 
>>> Brian
>>> 
 On Thu, 18 Aug 2016, Chris DiBona wrote:
 In military contracting , patent grants are key to the point where I 
 wouldn't consider a non patent granting license from, say, lockheed as 
 being open source at all.
 On Aug 18, 2016 3:05 PM, "Tzeng, Nigel H."  wrote:
 On 8/18/16, 3:57 PM, "License-discuss on behalf of Lawrence Rosen"
 >>> lro...@rosenlaw.com>
 wrote:
 
>Nigel Tzeng wrote:
>> The issue here is for code that is potentially quite substantial.  I
>>would think that would be a different scenario.
>
>If I include the works of Shakespeare in my software, it would of 
 course
>be substantial and yet still be public domain almost everywhere (?).
 
 If patents aren't a concern then okay.  Copyright lasts longer than
 patents so for anything that is in the public domain because of age 
 then
 no patents would still apply.
 
 There isn¹t a lot of code that has aged out.  Only code written between
 before 1963 and didn¹t get a renewal.
 
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 License-discuss@opensource.org
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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Brian Behlendorf]

Do those follow the same rules as copyright?  E.g., when done by a USG 
employee, it's public domain in the US?


Seems like those should get covered by whatever folks come up with.

Brian

On Fri, 19 Aug 2016, Smith, McCoy wrote:

Yes
USG files patents all the time


On Aug 18, 2016, at 5:51 PM, Brian Behlendorf  wrote:


Totally agree.  But can the USG file patents?  I suppose research organizations 
can (MITRE, maybe even NASA?) so it's not that academic; but presumably any 
place where this public domain arises, it applies to patents too.  Would be 
nice to get that sorted.

Brian


On Thu, 18 Aug 2016, Chris DiBona wrote:
In military contracting , patent grants are key to the point where I wouldn't 
consider a non patent granting license from, say, lockheed as being open source 
at all.
On Aug 18, 2016 3:05 PM, "Tzeng, Nigel H."  wrote:
 On 8/18/16, 3:57 PM, "License-discuss on behalf of Lawrence Rosen"
 
 wrote:

>Nigel Tzeng wrote:
>> The issue here is for code that is potentially quite substantial.  I
>>would think that would be a different scenario.
>
>If I include the works of Shakespeare in my software, it would of course
>be substantial and yet still be public domain almost everywhere (?).

 If patents aren't a concern then okay.  Copyright lasts longer than
 patents so for anything that is in the public domain because of age then
 no patents would still apply.

 There isn¹t a lot of code that has aged out.  Only code written between
 before 1963 and didn¹t get a renewal.

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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Smith, McCoy]

Yes
USG files patents all the time

> On Aug 18, 2016, at 5:51 PM, Brian Behlendorf  wrote:
> 
> 
> Totally agree.  But can the USG file patents?  I suppose research 
> organizations can (MITRE, maybe even NASA?) so it's not that academic; but 
> presumably any place where this public domain arises, it applies to patents 
> too.  Would be nice to get that sorted.
> 
> Brian
> 
>> On Thu, 18 Aug 2016, Chris DiBona wrote:
>> In military contracting , patent grants are key to the point where I 
>> wouldn't consider a non patent granting license from, say, lockheed as being 
>> open source at all.
>> On Aug 18, 2016 3:05 PM, "Tzeng, Nigel H."  wrote:
>>  On 8/18/16, 3:57 PM, "License-discuss on behalf of Lawrence Rosen"
>>  > lro...@rosenlaw.com>
>>  wrote:
>> 
>>  >Nigel Tzeng wrote:
>>  >> The issue here is for code that is potentially quite substantial.  I
>>  >>would think that would be a different scenario.
>>  >
>>  >If I include the works of Shakespeare in my software, it would of 
>> course
>>  >be substantial and yet still be public domain almost everywhere (?).
>> 
>>  If patents aren't a concern then okay.  Copyright lasts longer than
>>  patents so for anything that is in the public domain because of age then
>>  no patents would still apply.
>> 
>>  There isn¹t a lot of code that has aged out.  Only code written between
>>  before 1963 and didn¹t get a renewal.
>> 
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> On Aug 18, 2016, at 8:45 PM, license-discuss-requ...@opensource.org wrote:
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> Today's Topics:
> 
>   1. Re: [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army
>  Research Laboratory Open Source License (ARL OSL) 0.4.0
>  (Tzeng, Nigel H.)
>   2. Re: [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army
>  Research Laboratory Open Source License (ARL OSL) 0.4.0
>  (Tzeng, Nigel H.)
>   3. Re: [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army
>  Research Laboratory Open Source License (ARL OSL) 0.4.0 (Chris DiBona)
>   4. Re: [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army
>  Research Laboratory Open Source License (ARL OSL) 0.4.0
>  (Brian Behlendorf)
> 
> 
> --
> 
> Message: 1
> Date: Thu, 18 Aug 2016 21:31:20 +
> From: "Tzeng, Nigel H." 
> To: "license-discuss@opensource.org" ,
>Lawrence Rosen 
> Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source]
>Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0
> Message-ID: 
> Content-Type: text/plain; charset="iso-8859-1"
> 
> From: License-discuss 
> mailto:license-discuss-boun...@opensource.org>>
>  on behalf of "Smith, McCoy" 
> mailto:mccoy.sm...@intel.com>>
> 
>>> "I don't believe that there is an OSD requirement that the lawyers on 
>>> License-Review/License-Discuss agree that the legal concern being addressed 
>>> by a new license submission is valid.  *Especially when other lawyers 
>>> disagree.*"
> 
>> The problem is, I think to many of us commenting here, is that those other 
>> lawyers are not part of this conversation.  And for whatever reason have 
>> said they will not be.  So we're hearing "I'm not a lawyer, but unnamed 
>> lawyers have >told me there is this problem, but have not explained their 
>> basis for finding that problem."
> 
>> So there is likely some skepticism that there is a need at all for this 
>> license, as it seems to be just Apache 2.0, with clauses to address a 
>> problem that many (or all) of the lawyers on here are not even sure exists.
> 
> I get that, but you won't be the ones that have to deal with any problems 
> that arise if the issue does exist.  If approving ARL OSL and NOSA gives NASA 
> and ARL/Army the legal warm fuzzies to be more liberal in open sourcing code 
> then one new special purpose license doesn't hurt anyone even on the 
> proliferation front.  Only one because NOSA 1.3 would get retired in favor of 
> NOSA 2.0.
> 
> The White House can mandate 20% OSS release across all agencies but it's easy 
> for any agency uncomfortable with open sourcing their software to simply 
> decline.  In many places it's as easy as writing a classification guide that 
> says all software developed for this agency is automatically FOUO or LES.  
> Then open sourcing anything becomes a royal pain in the rear and not open 
> sourcing anything is as simple as writing a disclaimer that points at the 
> class guide.
> 
> And OSI's intransigence on CC0 may come around and bite it in the rear if a 
> significant FedGov OSS mandate starts off with CC0 as a default open source 
> license for the USG because that's what they did for code.gov and it's the 
> only one that fits the bill for public domain software.  And I don't recall 
> that CC0  "contains any specific terms about distribution of source code" so 
> if CC0 is usable for software then so is CC-BY and perhaps CC-BY-SA.
> -- next part --
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> 
> --
> 
> Message: 2
> Date: Thu, 18 Aug 2016 21:58:52 +
> From: "Tzeng, Nigel H." 
> To: Lawrence Rosen ,
>"license-discuss@opensource.org" 
> Subject: Re: [License-discuss] [Non-DoD 

Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Brian Behlendorf]

Totally agree.  But can the USG file patents?  I suppose research 
organizations can (MITRE, maybe even NASA?) so it's not that academic; but 
presumably any place where this public domain arises, it applies to 
patents too.  Would be nice to get that sorted.


Brian

On Thu, 18 Aug 2016, Chris DiBona wrote:

In military contracting , patent grants are key to the point where I wouldn't 
consider a non patent granting license from, say, lockheed as being open source 
at all.


On Aug 18, 2016 3:05 PM, "Tzeng, Nigel H."  wrote:
  On 8/18/16, 3:57 PM, "License-discuss on behalf of Lawrence Rosen"
  
  wrote:


  >Nigel Tzeng wrote:
  >> The issue here is for code that is potentially quite substantial.  I
  >>would think that would be a different scenario.
  >
  >If I include the works of Shakespeare in my software, it would of course
  >be substantial and yet still be public domain almost everywhere (?).

  If patents aren't a concern then okay.  Copyright lasts longer than
  patents so for anything that is in the public domain because of age then
  no patents would still apply.

  There isn¹t a lot of code that has aged out.  Only code written between
  before 1963 and didn¹t get a renewal.

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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Chris DiBona]

In military contracting , patent grants are key to the point where I
wouldn't consider a non patent granting license from, say, lockheed as
being open source at all.

On Aug 18, 2016 3:05 PM, "Tzeng, Nigel H."  wrote:

> On 8/18/16, 3:57 PM, "License-discuss on behalf of Lawrence Rosen"
> 
> wrote:
>
>
> >Nigel Tzeng wrote:
> >> The issue here is for code that is potentially quite substantial.  I
> >>would think that would be a different scenario.
> >
> >If I include the works of Shakespeare in my software, it would of course
> >be substantial and yet still be public domain almost everywhere (?).
>
> If patents aren't a concern then okay.  Copyright lasts longer than
> patents so for anything that is in the public domain because of age then
> no patents would still apply.
>
> There isn¹t a lot of code that has aged out.  Only code written between
> before 1963 and didn¹t get a renewal.
>
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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Tzeng, Nigel H.]

On 8/18/16, 3:57 PM, "License-discuss on behalf of Lawrence Rosen"

wrote:


>Nigel Tzeng wrote:
>> The issue here is for code that is potentially quite substantial.  I
>>would think that would be a different scenario.
>
>If I include the works of Shakespeare in my software, it would of course
>be substantial and yet still be public domain almost everywhere (?).

If patents aren't a concern then okay.  Copyright lasts longer than
patents so for anything that is in the public domain because of age then
no patents would still apply.

There isn¹t a lot of code that has aged out.  Only code written between
before 1963 and didn¹t get a renewal.

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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Tzeng, Nigel H.]

From: License-discuss 
mailto:license-discuss-boun...@opensource.org>>
 on behalf of "Smith, McCoy" 
mailto:mccoy.sm...@intel.com>>

>>"I don't believe that there is an OSD requirement that the lawyers on 
>>License-Review/License-Discuss agree that the legal concern being addressed 
>>by a new license submission is valid.  *Especially when other lawyers 
>>disagree.*"

>The problem is, I think to many of us commenting here, is that those other 
>lawyers are not part of this conversation.  And for whatever reason have said 
>they will not be.  So we're hearing "I'm not a lawyer, but unnamed lawyers 
>have >told me there is this problem, but have not explained their basis for 
>finding that problem."

>So there is likely some skepticism that there is a need at all for this 
>license, as it seems to be just Apache 2.0, with clauses to address a problem 
>that many (or all) of the lawyers on here are not even sure exists.

I get that, but you won't be the ones that have to deal with any problems that 
arise if the issue does exist.  If approving ARL OSL and NOSA gives NASA and 
ARL/Army the legal warm fuzzies to be more liberal in open sourcing code then 
one new special purpose license doesn't hurt anyone even on the proliferation 
front.  Only one because NOSA 1.3 would get retired in favor of NOSA 2.0.

The White House can mandate 20% OSS release across all agencies but it's easy 
for any agency uncomfortable with open sourcing their software to simply 
decline.  In many places it's as easy as writing a classification guide that 
says all software developed for this agency is automatically FOUO or LES.  Then 
open sourcing anything becomes a royal pain in the rear and not open sourcing 
anything is as simple as writing a disclaimer that points at the class guide.

And OSI's intransigence on CC0 may come around and bite it in the rear if a 
significant FedGov OSS mandate starts off with CC0 as a default open source 
license for the USG because that's what they did for code.gov and it's the only 
one that fits the bill for public domain software.  And I don't recall that CC0 
 "contains any specific terms about distribution of source code" so if CC0 is 
usable for software then so is CC-BY and perhaps CC-BY-SA.
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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Karan, Cem F CIV USARMY RDECOM ARL (US)]

There likely will be some USG-only discussion beforehand, but since there are 
a lot of people to coordinate on this, the sooner I get started, the better.

Thanks,
Cem Karan

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Tzeng, Nigel H.
> Sent: Thursday, August 18, 2016 5:00 PM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: 
> [Non-DoD Source] Re: U.S. Army Research Laboratory Open
> Source License (ARL OSL) 0.4.0
>
> 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.
>
>
>
>
> 
>
> Why not limit it to USG lawyers? That may be an easier sell for a first 
> meeting.  Especially if you can convince someone at the OMB to host
> the telcon because of the new policy and get the relevant DOJ lawyers to 
> dial in.
>
>
> It is too much to expect clear guidance (this is the government after all) 
> but it would at least be useful if the lawyers that approved the
> release of code.gov under CC0 could tell your lawyers why they thought it 
> was sufficient.  Especially if these are the same set of lawyers
> providing legal guidance to the White House OMB 20% OSS mandate.
>
> On 8/18/16, 4:36 PM, "License-discuss on behalf of Karan, Cem F CIV USARMY 
> RDECOM ARL (US)"  boun...@opensource.org on behalf of cem.f.karan@mail.mil> wrote:
>
> >Larry, I agree with you completely about the need for all attorneys
> >talking to one another, while us engineers sit back and listen.  I'm
> >going to try to talk the various attorneys in the USG that I've
> >contacted into being part of a telecon.  If I'm able to do so, are
> >there any attorneys on this list who would be interested in taking part
> >in that discussion?  If you are, please email me directly; put "ARL OSL
> >telecon" as the subject line, and tell me what times are best for you
> >relative to the Eastern Time Zone.
> >
> >PLEASE NOTE!  That telecon MUST be for attorneys ONLY!  I may be able
> >to convince the ARL attorneys to talk to outside attorneys, but they
> >will be VERY unhappy if anyone else is coming in on the line.  There
> >are good legal reasons for this; please don't try to sneak in.
> >
> >Thanks,
> >Cem Karan
>
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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Karan, Cem F CIV USARMY RDECOM ARL (US)]

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Tzeng, Nigel H.
> Sent: Thursday, August 18, 2016 4:26 PM
> To: Lawrence Rosen ; license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. 
> Army Research Laboratory Open Source License (ARL OSL)
> 0.4.0
> 
> >Cem Karan wrote:
> 
> >> The only reason that the ARL OSL was proposed AT ALL is because there is a 
> >> strong concern that since USG code doesn't have copyright
> [1], any license that relies exclusively on copyright may be invalidated by 
> the courts [2].
> 
> 
> 
> >We understand that strong concern. Most of us don't share it.
> 
> 
> Well, if all lawyers agreed then IP cases would go a lot more quickly, no?
> 
> Plaintiff’s lawyer: We think X!
> Defendant’s lawyer: We agree!
> 
> I don’t believe that there is an OSD requirement that the lawyers on 
> License-Review/License-Discuss agree that the legal concern being
> addressed by a new license submission is valid.  Especially when other 
> lawyers disagree.
> 
> Given that NOSA is still in limbo, it might be fair (not really given how 
> long NOSA has been in limbo) to ask that ARL and NASA lawyers get
> together and address their concerns in one special purpose license since both 
> are trying to address legal concerns they believe are valid for
> USG OSS projects.  Although, with the current white house interest, both NASA 
> and ARL could punt the issue up to the Tony Scott at the
> OMB (or whomever Chris suggested) and say “here are our requirements…give us 
> a FedGov OSS license that address those needs and
> submit it to the OSI".
> 
> And then approve (or deny) that license quickly once submitted If it passes 
> the OSD and retire the existing NOSA license rather than sit on
> it for three years without resolution.  Hopefully, if the White House submits 
> a license to the OSI it is reviewed with a bit more alacrity.

Actually, we ARE in talks with NASA; the attorney at ARL that is working on 
this used to work at NASA, and so knows the right people to talk to over there.

Thanks,
Cem Karan


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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Tzeng, Nigel H.]

Why not limit it to USG lawyers? That may be an easier sell for a first
meeting.  Especially if you can convince someone at the OMB to host the
telcon because of the new policy and get the relevant DOJ lawyers to dial
in.


It is too much to expect clear guidance (this is the government after all)
but it would at least be useful if the lawyers that approved the release
of code.gov under CC0 could tell your lawyers why they thought it was
sufficient.  Especially if these are the same set of lawyers providing
legal guidance to the White House OMB 20% OSS mandate.

On 8/18/16, 4:36 PM, "License-discuss on behalf of Karan, Cem F CIV USARMY
RDECOM ARL (US)"  wrote:

>Larry, I agree with you completely about the need for all attorneys
>talking to 
>one another, while us engineers sit back and listen.  I'm going to try to
>talk 
>the various attorneys in the USG that I've contacted into being part of a
>telecon.  If I'm able to do so, are there any attorneys on this list who
>would 
>be interested in taking part in that discussion?  If you are, please
>email me 
>directly; put "ARL OSL telecon" as the subject line, and tell me what
>times 
>are best for you relative to the Eastern Time Zone.
>
>PLEASE NOTE!  That telecon MUST be for attorneys ONLY!  I may be able to
>convince the ARL attorneys to talk to outside attorneys, but they will be
>VERY 
>unhappy if anyone else is coming in on the line.  There are good legal
>reasons 
>for this; please don't try to sneak in.
>
>Thanks,
>Cem Karan

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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Tzeng, Nigel H.]

On 8/18/16, 4:24 PM, "License-discuss on behalf of Richard Fontana"
 wrote:


>On Thu, Aug 18, 2016 at 07:15:52PM +, Tzeng, Nigel H. wrote:
>> From: License-discuss
>>mailto:license-discuss-bounces@op
>>ensource.org>> on behalf of "Smith, McCoy"
>>mailto:mccoy.sm...@intel.com>>
>> 
>> > Interestingly enough, the code of the code.gov site is licensed under
>>CC0 1.0:  
>>https://github.com/presidential-innovation-fellows/code-gov-web/blob/mast
>>er/LICENSE.md
>> 
>> But but but...that's not an OSI approved software license!
>> 
>> Why did that fail again?  The person who submitted didn't have standing
>>or something?
>
>The license steward withdrew the submission following negative
>reaction on license-review to the "No ... patent rights held by
>Affirmer are waived, abandoned, surrendered, licensed or otherwise
>affected by this document" clause.

Thank you Richard.  If the USG is using CC0 for their new OSS initiative
is this something that should be revisited?

Of course, you know I¹m of the opinion that is the OSI states a license is
open source if it passes the OSD then we should either amend the OSD to
require explicit patent grants moving forward or not block useful new
licenses because of the lack of a patent grant.

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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Karan, Cem F CIV USARMY RDECOM ARL (US)]

Are you asking what happens in foreign jurisdictions if the license is 
invalidated within the USA?  I have no idea; I don't even know what will happen 
within the USA in that case.  Maybe one of the lawyers on the list could 
comment?

Thanks,
Cem Karan

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Diane Peters
> Sent: Thursday, August 18, 2016 3:28 PM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. 
> Army Research Laboratory Open Source License (ARL OSL)
> 0.4.0
> 
> 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.
> 
> 
> 
> 
> 
> 
> Copyright is not available for US government works as a matter of US 
> copyright law (section 105), but that does not mean those works
> may not be restricted by copyright laws of other countries. Congress 
> contemplated that expressly.
> 
> 
>   “The 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.”
> 
>   Notes of Committee on the Judiciary (re Section 105), H.R. Rep. No. 
> 1476, 94th Cong., 2d Sess. 59 (1976)
> 
> 
> Given this, it remains unclear how a license to the worldwide public would be 
> invalidated by a court? Please say more.
> 
> 
> On Thu, Aug 18, 2016 at 10:51 AM, Karan, Cem F CIV USARMY RDECOM ARL (US) 
>  mailto:cem.f.karan@mail.mil > > wrote:
> 
> 
>   The only reason that the ARL OSL was proposed AT ALL is because there 
> is a
>   strong concern that since USG code doesn't have copyright [1], any 
> license
>   that relies exclusively on copyright may be invalidated by the courts 
> [2].  If
>   the USG had copyright, then I could stop pushing the ARL OSL entirely 
> as we
>   could use any of the OSI-supplied licenses.
> 
>   So to be 100% clear, we don't know if any copyright-based license will 
> stand
>   up in court for works that don't have copyright attached.  The only 
> reason
>   that the ARL OSL was proposed was to deal with that particular 
> situation.  If
>   you have case law where the USG won a lawsuit over material licensed 
> under one
>   of the copyright-based OSI licenses where there was no claim of 
> copyright,
>   please provide it.  I can pass that to the ARL Legal team who can then 
> review
>   it.
> 
>   Thanks,
>   Cem Karan
> 
>   [1] I'm making the usual assumption that this was code created by USG
>   employees in the course of their duties; copyright can be assigned to 
> the USG
>   where and when it exists, but I'm ignoring that for right now.
> 
>   [2] My expectation is that it would be invalidated for the USG-supplied
>   portion, but not for any portion that had copyright attached.  Note 
> that this
>   is just my opinion, and I have nothing to back it up.  IANAL.
> 
>   > -Original Message-
>   > From: License-discuss 
> [Caution-mailto:license-discuss-boun...@opensource.org < 
> Caution-mailto:license-discuss-
> boun...@opensource.org > ] On
>   > Behalf Of Smith, McCoy
>   > Sent: Wednesday, August 17, 2016 2:54 PM
>   > To: license-discuss@opensource.org < 
> Caution-mailto:license-discuss@opensource.org >
>   > Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] 
> Re:
>   > U.S. Army Research Laboratory Open Source License (ARL OSL)
>   > 0.4.0
>   >
>   > Or to put a finer point on it, the other issues you identify appear 
> to be
>   > ones that are explicitly addressed in many already-approved OSI
>   > licenses, including Apache 2.0, the one you are modeling your license 
> upon.
>   >
>   > I hope you're getting a sense that there are several lawyers on this 
> mailing
>   > list -- lawyers who have years of experience looking at,
>   > debating, and giving advice on the issues you identify in this 
> submission --
>   > who think that your proposed license is a variant of Apache 2.0
>   > designed to solve a "problem" for USG users with Apache 2.0 that we 
> are
>   > skeptical even exists.  Perhaps the ARL lawyers can clarify what
>   > the problem is, and that we are missing something.  But I think at 
> least I
>   > am having a hard time understanding how this license does
>   > anything that Apache 2.0 doesn't.
>   >
>   > -Original Message-
>   

Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Karan, Cem F CIV USARMY RDECOM ARL (US)]

Larry, I agree with you completely about the need for all attorneys talking to 
one another, while us engineers sit back and listen.  I'm going to try to talk 
the various attorneys in the USG that I've contacted into being part of a 
telecon.  If I'm able to do so, are there any attorneys on this list who would 
be interested in taking part in that discussion?  If you are, please email me 
directly; put "ARL OSL telecon" as the subject line, and tell me what times 
are best for you relative to the Eastern Time Zone.

PLEASE NOTE!  That telecon MUST be for attorneys ONLY!  I may be able to 
convince the ARL attorneys to talk to outside attorneys, but they will be VERY 
unhappy if anyone else is coming in on the line.  There are good legal reasons 
for this; please don't try to sneak in.

Thanks,
Cem Karan

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Lawrence Rosen
> Sent: Thursday, August 18, 2016 2:15 PM
> To: license-discuss@opensource.org
> Cc: Lawrence Rosen 
> Subject: [Non-DoD Source] Re: [License-discuss] [Non-DoD Source] Re: 
> [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source
> License (ARL OSL) 0.4.0
>
> 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.
>
>
> 
>
>
>
>
> Cem Karan wrote:
>
> > The only reason that the ARL OSL was proposed AT ALL is because there is a 
> > strong concern that since USG code doesn't have copyright
> [1], any license that relies exclusively on copyright may be invalidated by 
> the courts [2].
>
>
>
> We understand that strong concern. Most of us don't share it.
>
>
>
> Many of us have noted that NO FOSS LICENSE relies exclusively on copyright 
> law. That argument was made here on this list years ago. No
> court anywhere has ever decided a FOSS case without also using CONTRACT 
> interpretation rules.
>
>
>
> We also noted that MOST FOSS SOFTWARE already contains public domain 
> components. Perhaps ALL FOSS SOFTWARE, considering that
> engineers often claim copyright on more than they deserve.
>
>
>
> Our U.S. Army software is no different: Portions copyright; portions not.
>
>
>
> We attorneys here will try to convince your attorneys of that if they 
> consent to speak to us. You engineers should not volunteer to be
> translators in that discussion, but listen in. And we attorneys should speak 
> candidly about copyright and contract law. Several of us are
> specialists, and several here have already volunteered to have that legal 
> chat with your counsel.
>
>
>
> /Larry
>
>
>
> Lawrence Rosen
>
> Rosenlaw (Caution-www.rosenlaw.com)
>
> 3001 King Ranch Rd., Ukiah, CA 95482
>
> Cell: 707-478-8932
>
>
>
>
>
> -Original Message-
> From: Karan, Cem F CIV USARMY RDECOM ARL (US) 
> [Caution-mailto:cem.f.karan@mail.mil]
> Sent: Thursday, August 18, 2016 10:52 AM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: 
> U.S. Army Research Laboratory Open Source License (ARL OSL)
> 0.4.0
>
>
>
> The only reason that the ARL OSL was proposed AT ALL is because there is a 
> strong concern that since USG code doesn't have copyright
> [1], any license that relies exclusively on copyright may be invalidated by 
> the courts [2].  If the USG had copyright, then I could stop
> pushing the ARL OSL entirely as we could use any of the OSI-supplied 
> licenses.
>
>
>
> So to be 100% clear, we don't know if any copyright-based license will stand 
> up in court for works that don't have copyright attached.  The
> only reason that the ARL OSL was proposed was to deal with that particular 
> situation.  If you have case law where the USG won a lawsuit
> over material licensed under one of the copyright-based OSI licenses where 
> there was no claim of copyright, please provide it.  I can pass
> that to the ARL Legal team who can then review it.
>
>
>
> Thanks,
>
> Cem Karan
>
>
>
> [1] I'm making the usual assumption that this was code created by USG 
> employees in the course of their duties; copyright can be assigned
> to the USG where and when it exists, but I'm ignoring that for right now.
>
>
>
> [2] My expectation is that it would be invalidated for the USG-supplied 
> portion, but not for any portion that had copyright attached.  Note
> that this is just my opinion, and I have nothing to back it up.  IANAL.
>
>
>
> > -Original Message-
>
> > From: License-discuss 
> > [Caution-mailto:license-discuss-boun...@opensource.org < 
> > Caution-mailto:license-discuss-
> boun...@opensource.org > ]
>
> > On Behalf Of Smith, McCoy
>
> > Sent: Wednesday, August 17, 2016 2:54 PM
>
> > To: license-discuss@opensource.org < 
> > Caution-mailto:license-discuss@opensource.org >
>
> > Subject: Re: [License-discuss] [Non-DoD 

Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Smith, McCoy]

"I don't believe that there is an OSD requirement that the lawyers on 
License-Review/License-Discuss agree that the legal concern being addressed by 
a new license submission is valid.  *Especially when other lawyers disagree.*"

The problem is, I think to many of us commenting here, is that those other 
lawyers are not part of this conversation.  And for whatever reason have said 
they will not be.  So we're hearing "I'm not a lawyer, but unnamed lawyers have 
told me there is this problem, but have not explained their basis for finding 
that problem."

So there is likely some skepticism that there is a need at all for this 
license, as it seems to be just Apache 2.0, with clauses to address a problem 
that many (or all) of the lawyers on here are not even sure exists.

From: License-discuss [mailto:license-discuss-boun...@opensource.org] On Behalf 
Of Tzeng, Nigel H.
Sent: Thursday, August 18, 2016 1:26 PM
To: Lawrence Rosen; license-discuss@opensource.org
Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. 
Army Research Laboratory Open Source License (ARL OSL) 0.4.0


>Cem Karan wrote:

>> The only reason that the ARL OSL was proposed AT ALL is because there is a 
>> strong concern that since USG code doesn't have copyright [1], any license 
>> that relies exclusively on copyright may be invalidated by the courts [2].



>We understand that strong concern. Most of us don't share it.

Well, if all lawyers agreed then IP cases would go a lot more quickly, no?

Plaintiff's lawyer: We think X!
Defendant's lawyer: We agree!

I don't believe that there is an OSD requirement that the lawyers on 
License-Review/License-Discuss agree that the legal concern being addressed by 
a new license submission is valid.  Especially when other lawyers disagree.

Given that NOSA is still in limbo, it might be fair (not really given how long 
NOSA has been in limbo) to ask that ARL and NASA lawyers get together and 
address their concerns in one special purpose license since both are trying to 
address legal concerns they believe are valid for USG OSS projects.  Although, 
with the current white house interest, both NASA and ARL could punt the issue 
up to the Tony Scott at the OMB (or whomever Chris suggested) and say "here are 
our requirements...give us a FedGov OSS license that address those needs and 
submit it to the OSI".

And then approve (or deny) that license quickly once submitted If it passes the 
OSD and retire the existing NOSA license rather than sit on it for three years 
without resolution.  Hopefully, if the White House submits a license to the OSI 
it is reviewed with a bit more alacrity.
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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Tzeng, Nigel H.]

>Cem Karan wrote:

>> The only reason that the ARL OSL was proposed AT ALL is because there is a 
>> strong concern that since USG code doesn't have copyright [1], any license 
>> that relies exclusively on copyright may be invalidated by the courts [2].



>We understand that strong concern. Most of us don't share it.

Well, if all lawyers agreed then IP cases would go a lot more quickly, no?

Plaintiff's lawyer: We think X!
Defendant's lawyer: We agree!

I don't believe that there is an OSD requirement that the lawyers on 
License-Review/License-Discuss agree that the legal concern being addressed by 
a new license submission is valid.  Especially when other lawyers disagree.

Given that NOSA is still in limbo, it might be fair (not really given how long 
NOSA has been in limbo) to ask that ARL and NASA lawyers get together and 
address their concerns in one special purpose license since both are trying to 
address legal concerns they believe are valid for USG OSS projects.  Although, 
with the current white house interest, both NASA and ARL could punt the issue 
up to the Tony Scott at the OMB (or whomever Chris suggested) and say "here are 
our requirements...give us a FedGov OSS license that address those needs and 
submit it to the OSI".

And then approve (or deny) that license quickly once submitted If it passes the 
OSD and retire the existing NOSA license rather than sit on it for three years 
without resolution.  Hopefully, if the White House submits a license to the OSI 
it is reviewed with a bit more alacrity.
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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Richard Fontana]

On Thu, Aug 18, 2016 at 07:15:52PM +, Tzeng, Nigel H. wrote:
> From: License-discuss 
> mailto:license-discuss-boun...@opensource.org>>
>  on behalf of "Smith, McCoy" 
> mailto:mccoy.sm...@intel.com>>
> 
> > Interestingly enough, the code of the code.gov site is licensed under CC0 
> > 1.0:  
> > https://github.com/presidential-innovation-fellows/code-gov-web/blob/master/LICENSE.md
> 
> But but but...that's not an OSI approved software license!
> 
> Why did that fail again?  The person who submitted didn't have standing or 
> something?

The license steward withdrew the submission following negative
reaction on license-review to the "No ... patent rights held by
Affirmer are waived, abandoned, surrendered, licensed or otherwise
affected by this document" clause.

Richard
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Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

[Karan, Cem F CIV USARMY RDECOM ARL (US)]

> -Original Message-
> From: Wheeler, David A [mailto:dwhee...@ida.org]
> Sent: Thursday, August 18, 2016 2:52 PM
> To: legal-disc...@apache.org
> Cc: Karl Fogel ; Lawrence Rosen ; 
> license-discuss@opensource.org
> Subject: RE: [License-discuss] [Non-DoD Source] Re: US Army Research 
> Laboratory Open Source License proposal
>
> William A Rowe Jr [Caution-mailto:wr...@rowe-clan.net]:
> > Unsure how this news might apply but it sounds like changes in overall 
> > policy might gain some traction to address this... If OMB came up
> with the rational of either approving AL 2.0 as is, or made a compelling 
> case for AL 2.1 clarifications.
> Caution-https://techcrunch.com/2016/08/08/the-white-house-just-released-the-federal-source-code-policy-to-help-government-agencies-
> go-open-source/
>
> The detailed policy is here:
> Caution-https://www.whitehouse.gov/sites/default/files/omb/memoranda/2016/m_16_21.pdf
>
> That new US federal government policy doesn't directly apply to many of 
> Cem's cases.  The policy doesn't apply to National Security
> Systems (NSS), and I expect that a lot of what the Army research labs do 
> would be classified as NSS.  The policy certainly presses for the
> release of open source software in general; it requires that a minimum of 
> 20% of custom-developed code be released as OSS in each year
> for 3 years.  It does note (in its definitions) that "custom developed code" 
> includes software developed by government officials as part of
> their official duties.  The policy itself does not delve into this kind of 
> legal analysis.

The current lack of legal analysis is the problem.  If they had complete 
analysis and full guidance about the license, we wouldn't be here at all!

Thanks,
Cem Karan


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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Karan, Cem F CIV USARMY RDECOM ARL (US)]

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Lawrence Rosen
> Sent: Thursday, August 18, 2016 2:35 PM
> To: license-discuss@opensource.org
> Cc: Lawrence Rosen 
> Subject: [Non-DoD Source] Re: [License-discuss] [Non-DoD Source] Re: 
> [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source
> License (ARL OSL) 0.4.0
>
> Cam Karan asked:
>
> > If you have case law where the USG won a lawsuit over material licensed 
> > under one of the copyright-based OSI licenses where there was
> no claim of copyright, please provide it.
>
>
>
> A copyright lawsuit requires copyright, so that's impossible.
>
>
>
> A contract lawsuit requires damages and is usually fought in state (or small 
> claims?) court without even being published. Ask your own
> attorneys if they have ever won a contract lawsuit in a state or federal 
> court without proof of damages because the USG or anyone else
> merely distributed harmless public domain software.

I can, but I suspect that the answer is 'no' because I believe that the DoJ is 
the one that handles defending the USG.  And, considering that you are a 
lawyer and I'm not, I suspect that you're right about damages being necessary. 
;)

That said, what is being proposed is new ground for the USG.  I suspect that 
there is very little if any case law regarding Open Source and the USG.  I'd 
rather get all this right BEFORE there are any lawsuits.

Thanks,
Cem Karan



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Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

[Karan, Cem F CIV USARMY RDECOM ARL (US)]

The real trick is the DoJ; they have to defend the USG in court, as well as 
deal with any other legal aspects.  If they are willing to accept the licenses 
as-is, then I suspect that rest of the USG would go along (note that I can't 
speak for the USG on this, someone with authority to sign off on the policy 
would have to make that decision).

Thanks,
Cem Karan

> -Original Message-
> From: William A Rowe Jr [mailto:wr...@rowe-clan.net]
> Sent: Thursday, August 18, 2016 2:26 PM
> To: legal-disc...@apache.org
> Cc: Karl Fogel ; Lawrence Rosen ; 
> 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.
>
>
> 
>
>
>
>
> On Aug 3, 2016 08:51, "Karan, Cem F CIV USARMY RDECOM ARL (US)" 
>  mailto:cem.f.karan@mail.mil > > wrote:
> >
> > Hi all, Karl Fogel on the mil-oss (Caution-http://www.mil-oss.org/ <
> > Caution-http://www.mil-oss.org/ > ) mailing list made a suggestion
> > that might be the solution.  Would the Apache foundation be willing to
> > work on Apache 2.1, or maybe 3.0, incorporating changes as needed to
> > cover works that don't have copyright attached to them?  If that were 
> > possible, we wouldn't need the ARL OSL at all.
> >
> > Thanks,
> > Cem Karan
>
> Unsure how this news might apply but it sounds like changes in overall 
> policy might gain some traction to address this... If OMB came up
> with the rational of either approving AL 2.0 as is, or made a compelling 
> case for AL 2.1 clarifications.
>
> Caution-https://techcrunch.com/2016/08/08/the-white-house-just-released-the-federal-source-code-policy-to-help-government-agencies-
> go-open-source/ < 
> Caution-https://techcrunch.com/2016/08/08/the-white-house-just-released-the-federal-source-code-policy-to-help-
> government-agencies-go-open-source/ >



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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[John Cowan]

Diane Peters scripsit:

> Given this, it remains unclear how a license to the worldwide public would
> be invalidated by a court? Please say more.

Because we don't know what law a foreign court would apply.  It might
apply the Berne Convention, and say "This work has a copyright term of
zero years in its home country, so it has a copyright term of zero years
here."  Or it might apply its local law as if the work were a local work.
Or it might do something else.  Conflicts law is still rather primitive
and unpredictable.

-- 
John Cowan  http://www.ccil.org/~cowanco...@ccil.org
If you understand, things are just as they are.
if you do not understand, things are just as they are.
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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Lawrence Rosen]

Nigel Tzeng wrote:
> The issue here is for code that is potentially quite substantial.  I would 
> think that would be a different scenario.

If I include the works of Shakespeare in my software, it would of course be 
substantial and yet still be public domain almost everywhere (?). I license my 
entire work to you under the Apache 2.0 license. [This is what you should do 
with ARL software!]

If I also want to disclaim all warranties and liability against viruses and 
other malicious code, my Apache 2.0 contract will probably protect me in most 
jurisdictions. If Apple now takes my work and includes it in the next iPhone 
release, then Apple may become liable under commercial laws for electronic 
products in the U.S., and so perhaps Apple and I will eventually have a 
contract dispute or one of its customers may sue me for damages. 

I don't think that is a copyright lawsuit regardless of whether I own the 
copyright on the virus.

And Shakespeare is still free and not liable.

/Larry


-Original Message-
From: Tzeng, Nigel H. [mailto:nigel.tz...@jhuapl.edu] 
Sent: Thursday, August 18, 2016 12:34 PM
To: license-discuss@opensource.org
Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. 
Army Research Laboratory Open Source License (ARL OSL) 0.4.0

On 8/18/16, 11:03 AM, "License-discuss on behalf of Richard Fontana"
 
wrote:


>As a few have pointed out, all code that is nominally licensed under 
>open source licenses will contain noncopyrighted portions.

While true, that¹s because they were not significant enough to have copyright.

The issue here is for code that is potentially quite substantial.  I would 
think that would be a different scenario.

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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Karan, Cem F CIV USARMY RDECOM ARL (US)]

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Richard Fontana
> Sent: Thursday, August 18, 2016 11:04 AM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: 
> U.S. Army Research Laboratory Open Source License (ARL OSL)
> 0.4.0
>
> On Thu, Aug 18, 2016 at 02:50:18PM +, Karan, Cem F CIV USARMY RDECOM ARL 
> (US) wrote:
> > >
> > > Even if you were correct in the assertions you've made about ARL
> > > code, why is a new license needed for contributors other than ARL?
> >
> > Are you suggesting a dual license scheme, where all copyrighted
> > portions are under Apache 2.0, and all non-copyrighted portions are under 
> > the ARL OSL?
>
> No, I'm just suggesting why not adopt a rule that all contributors (other 
> than ARL -- though for the reasons others have stated I think this
> should also apply to ARL) license contributions under the Apache License 
> 2.0.
>
> As a few have pointed out, all code that is nominally licensed under open 
> source licenses will contain noncopyrighted portions.

OK, so you're proposing that contributions that have copyright use the Apache 
2.0 license, and contributions that don't have copyright use the ARL OSL, 
correct?  I just want to make sure I fully understand what you're proposing.

Thanks,
Cem Karan



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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Tzeng, Nigel H.]

On 8/18/16, 11:03 AM, "License-discuss on behalf of Richard Fontana"
 wrote:


>As a few have pointed out, all code that is nominally licensed under
>open source licenses will contain noncopyrighted portions.

While true, that¹s because they were not significant enough to have
copyright.

The issue here is for code that is potentially quite substantial.  I would
think that would be a different scenario.

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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Diane Peters]

Copyright is not available for US government works as a matter of US
copyright law (section 105), but that does not mean those works may not be
restricted by copyright laws of other countries. Congress contemplated that
expressly.

“The 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.”

Notes of Committee on the Judiciary (re Section 105), H.R. Rep. No. 1476,
94th Cong., 2d Sess. 59 (1976)


Given this, it remains unclear how a license to the worldwide public would
be invalidated by a court? Please say more.


On Thu, Aug 18, 2016 at 10:51 AM, Karan, Cem F CIV USARMY RDECOM ARL (US) <
cem.f.karan@mail.mil> wrote:

> The only reason that the ARL OSL was proposed AT ALL is because there is a
> strong concern that since USG code doesn't have copyright [1], any license
> that relies exclusively on copyright may be invalidated by the courts
> [2].  If
> the USG had copyright, then I could stop pushing the ARL OSL entirely as we
> could use any of the OSI-supplied licenses.
>
> So to be 100% clear, we don't know if any copyright-based license will
> stand
> up in court for works that don't have copyright attached.  The only reason
> that the ARL OSL was proposed was to deal with that particular situation.
> If
> you have case law where the USG won a lawsuit over material licensed under
> one
> of the copyright-based OSI licenses where there was no claim of copyright,
> please provide it.  I can pass that to the ARL Legal team who can then
> review
> it.
>
> Thanks,
> Cem Karan
>
> [1] I'm making the usual assumption that this was code created by USG
> employees in the course of their duties; copyright can be assigned to the
> USG
> where and when it exists, but I'm ignoring that for right now.
>
> [2] My expectation is that it would be invalidated for the USG-supplied
> portion, but not for any portion that had copyright attached.  Note that
> this
> is just my opinion, and I have nothing to back it up.  IANAL.
>
> > -Original Message-
> > From: License-discuss [mailto:license-discuss-boun...@opensource.org] On
> > Behalf Of Smith, McCoy
> > Sent: Wednesday, August 17, 2016 2:54 PM
> > To: license-discuss@opensource.org
> > Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re:
> > U.S. Army Research Laboratory Open Source License (ARL OSL)
> > 0.4.0
> >
> > Or to put a finer point on it, the other issues you identify appear to be
> > ones that are explicitly addressed in many already-approved OSI
> > licenses, including Apache 2.0, the one you are modeling your license
> upon.
> >
> > I hope you're getting a sense that there are several lawyers on this
> mailing
> > list -- lawyers who have years of experience looking at,
> > debating, and giving advice on the issues you identify in this
> submission --
> > who think that your proposed license is a variant of Apache 2.0
> > designed to solve a "problem" for USG users with Apache 2.0 that we are
> > skeptical even exists.  Perhaps the ARL lawyers can clarify what
> > the problem is, and that we are missing something.  But I think at least
> I
> > am having a hard time understanding how this license does
> > anything that Apache 2.0 doesn't.
> >
> > -Original Message-
> > From: License-discuss
> > [Caution-mailto:license-discuss-boun...@opensource.org] On Behalf Of
> Richard
> > Fontana
> > Sent: Wednesday, August 17, 2016 11:33 AM
> > To: license-discuss@opensource.org
> > Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re:
> > U.S. Army Research Laboratory Open Source License (ARL OSL)
> > 0.4.0
> >
> > On Wed, Aug 17, 2016 at 06:17:07PM +, Karan, Cem F CIV USARMY RDECOM
> ARL
> > (US) wrote:
> > >
> > > Once again, liability isn't the only issue; there are also copyright
> > > issues (for contributors), and IP issues.  If we could solve the
> > > problem via a simple disclaimer of liability, we would.  We need to
> handle
> > > ALL the issues.
> >
> > Even if you were correct in the assertions you've made about ARL code,
> why
> > is a new license needed for contributors other than ARL?
>
>
>
> ___
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>
>
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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Tzeng, Nigel H.]

From: License-discuss 
mailto:license-discuss-boun...@opensource.org>>
 on behalf of "Smith, McCoy" 
mailto:mccoy.sm...@intel.com>>

> Interestingly enough, the code of the code.gov site is licensed under CC0 
> 1.0:  
> https://github.com/presidential-innovation-fellows/code-gov-web/blob/master/LICENSE.md

But but but...that's not an OSI approved software license!

Why did that fail again?  The person who submitted didn't have standing or 
something?

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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[John Cowan]

Lawrence Rosen scripsit:

> We attorneys here will try to convince your attorneys of that if
> they consent to speak to us. You engineers should not volunteer to
> be translators in that discussion, but listen in. And we attorneys
> should speak candidly about copyright and contract law. Several of
> us are specialists, and several here have already volunteered to have
> that legal chat with your counsel.

If lawyers talked to other lawyers, they might end up changing their
minds, and that would never do.

"[M]uch enquiry having been made concerning a gentleman, who had quitted
a company where Johnson was, and no information being obtained; at
last Johnson observed, that 'he did not care to speak ill of any man
behind his back, but he believed the gentleman was an _attorney_'."
--Boswell's Life of Johnson

:-)

-- 
John Cowan  http://www.ccil.org/~cowanco...@ccil.org
Being understandable rather than obscurantist poses certain
risks, in that one's opinions are clear and therefore falsifiable
in the light of new data, but it has the advantage of encouraging
feedback from others.  --James A. Matisoff
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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Lawrence Rosen]

Cam Karan asked:

> If you have case law where the USG won a lawsuit over material licensed under 
> one of the copyright-based OSI licenses where there was no claim of 
> copyright, please provide it. 

 

A copyright lawsuit requires copyright, so that's impossible. 

 

A contract lawsuit requires damages and is usually fought in state (or small 
claims?) court without even being published. Ask your own attorneys if they 
have ever won a contract lawsuit in a state or federal court without proof of 
damages because the USG or anyone else merely distributed harmless public 
domain software.

 

/Larry

 

Lawrence Rosen

Rosenlaw (  www.rosenlaw.com) 

3001 King Ranch Rd., Ukiah, CA 95482

Cell: 707-478-8932 

This email is licensed under   
CC-BY-4.0. Please copy freely.  

 

From: Lawrence Rosen [mailto:lro...@rosenlaw.com] 
Sent: Thursday, August 18, 2016 11:15 AM
To: license-discuss@opensource.org
Cc: Lawrence Rosen 
Subject: RE: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. 
Army Research Laboratory Open Source License (ARL OSL) 0.4.0

 

Cem Karan wrote:

> The only reason that the ARL OSL was proposed AT ALL is because there is a 
> strong concern that since USG code doesn't have copyright [1], any license 
> that relies exclusively on copyright may be invalidated by the courts [2].

 

We understand that strong concern. Most of us don't share it.

 

Many of us have noted that NO FOSS LICENSE relies exclusively on copyright law. 
That argument was made here on this list years ago. No court anywhere has ever 
decided a FOSS case without also using CONTRACT interpretation rules.

 

We also noted that MOST FOSS SOFTWARE already contains public domain 
components. Perhaps ALL FOSS SOFTWARE, considering that engineers often claim 
copyright on more than they deserve.

 

Our U.S. Army software is no different: Portions copyright; portions not.

 

We attorneys here will try to convince your attorneys of that if they consent 
to speak to us. You engineers should not volunteer to be translators in that 
discussion, but listen in. And we attorneys should speak candidly about 
copyright and contract law. Several of us are specialists, and several here 
have already volunteered to have that legal chat with your counsel.

 

/Larry

 

Lawrence Rosen

Rosenlaw (www.rosenlaw.com  ) 

3001 King Ranch Rd., Ukiah, CA 95482

Cell: 707-478-8932 

 

 

-Original Message-
From: Karan, Cem F CIV USARMY RDECOM ARL (US) [mailto:cem.f.karan@mail.mil] 
Sent: Thursday, August 18, 2016 10:52 AM
To: license-discuss@opensource.org  
Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. 
Army Research Laboratory Open Source License (ARL OSL) 0.4.0

 

The only reason that the ARL OSL was proposed AT ALL is because there is a 
strong concern that since USG code doesn't have copyright [1], any license that 
relies exclusively on copyright may be invalidated by the courts [2].  If the 
USG had copyright, then I could stop pushing the ARL OSL entirely as we could 
use any of the OSI-supplied licenses.

 

So to be 100% clear, we don't know if any copyright-based license will stand up 
in court for works that don't have copyright attached.  The only reason that 
the ARL OSL was proposed was to deal with that particular situation.  If you 
have case law where the USG won a lawsuit over material licensed under one of 
the copyright-based OSI licenses where there was no claim of copyright, please 
provide it.  I can pass that to the ARL Legal team who can then review it.

 

Thanks,

Cem Karan

 

[1] I'm making the usual assumption that this was code created by USG employees 
in the course of their duties; copyright can be assigned to the USG where and 
when it exists, but I'm ignoring that for right now.

 

[2] My expectation is that it would be invalidated for the USG-supplied 
portion, but not for any portion that had copyright attached.  Note that this 
is just my opinion, and I have nothing to back it up.  IANAL.

 

> -Original Message-

> From: License-discuss [  
> mailto:license-discuss-boun...@opensource.org] 

> On Behalf Of Smith, McCoy

> Sent: Wednesday, August 17, 2016 2:54 PM

> To:   license-discuss@opensource.org

> Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: 

> U.S. Army Research Laboratory Open Source License (ARL OSL)

> 0.4.0

> 

> Or to put a finer point on it, the other issues you identify appear to 

> be ones that are explicitly addressed in many already-approved OSI 

> licenses, including Apache 2.0, the one you are modeling your license upon.

> 

> I hope you're getting a sense that there are several lawyers on this 

> mailing list -- lawyers who have years of experience looking at, 

> 

Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Radcliffe, Mark]

I suggest using the Apache contribution license agreements rather than Apache 
itself.

-Original Message-
From: License-discuss [mailto:license-discuss-boun...@opensource.org] On Behalf 
Of Richard Fontana
Sent: Thursday, August 18, 2016 8:04 AM
To: license-discuss@opensource.org
Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. 
Army Research Laboratory Open Source License (ARL OSL) 0.4.0

On Thu, Aug 18, 2016 at 02:50:18PM +, Karan, Cem F CIV USARMY RDECOM ARL 
(US) wrote:
> >
> > Even if you were correct in the assertions you've made about ARL 
> > code, why is a new license needed for contributors other than ARL?
> 
> Are you suggesting a dual license scheme, where all copyrighted 
> portions are under Apache 2.0, and all non-copyrighted portions are under the 
> ARL OSL?

No, I'm just suggesting why not adopt a rule that all contributors (other than 
ARL -- though for the reasons others have stated I think this should also apply 
to ARL) license contributions under the Apache License 2.0.

As a few have pointed out, all code that is nominally licensed under open 
source licenses will contain noncopyrighted portions.
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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Lawrence Rosen]

Cem Karan wrote:

> The only reason that the ARL OSL was proposed AT ALL is because there is a 
> strong concern that since USG code doesn't have copyright [1], any license 
> that relies exclusively on copyright may be invalidated by the courts [2].

 

We understand that strong concern. Most of us don't share it.

 

Many of us have noted that NO FOSS LICENSE relies exclusively on copyright law. 
That argument was made here on this list years ago. No court anywhere has ever 
decided a FOSS case without also using CONTRACT interpretation rules.

 

We also noted that MOST FOSS SOFTWARE already contains public domain 
components. Perhaps ALL FOSS SOFTWARE, considering that engineers often claim 
copyright on more than they deserve.

 

Our U.S. Army software is no different: Portions copyright; portions not.

 

We attorneys here will try to convince your attorneys of that if they consent 
to speak to us. You engineers should not volunteer to be translators in that 
discussion, but listen in. And we attorneys should speak candidly about 
copyright and contract law. Several of us are specialists, and several here 
have already volunteered to have that legal chat with your counsel.

 

/Larry

 

Lawrence Rosen

Rosenlaw (www.rosenlaw.com) 

3001 King Ranch Rd., Ukiah, CA 95482

Cell: 707-478-8932 

 

 

-Original Message-
From: Karan, Cem F CIV USARMY RDECOM ARL (US) [mailto:cem.f.karan@mail.mil] 
Sent: Thursday, August 18, 2016 10:52 AM
To: license-discuss@opensource.org
Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. 
Army Research Laboratory Open Source License (ARL OSL) 0.4.0

 

The only reason that the ARL OSL was proposed AT ALL is because there is a 
strong concern that since USG code doesn't have copyright [1], any license that 
relies exclusively on copyright may be invalidated by the courts [2].  If the 
USG had copyright, then I could stop pushing the ARL OSL entirely as we could 
use any of the OSI-supplied licenses.

 

So to be 100% clear, we don't know if any copyright-based license will stand up 
in court for works that don't have copyright attached.  The only reason that 
the ARL OSL was proposed was to deal with that particular situation.  If you 
have case law where the USG won a lawsuit over material licensed under one of 
the copyright-based OSI licenses where there was no claim of copyright, please 
provide it.  I can pass that to the ARL Legal team who can then review it.

 

Thanks,

Cem Karan

 

[1] I'm making the usual assumption that this was code created by USG employees 
in the course of their duties; copyright can be assigned to the USG where and 
when it exists, but I'm ignoring that for right now.

 

[2] My expectation is that it would be invalidated for the USG-supplied 
portion, but not for any portion that had copyright attached.  Note that this 
is just my opinion, and I have nothing to back it up.  IANAL.

 

> -Original Message-

> From: License-discuss [  
> mailto:license-discuss-boun...@opensource.org] 

> On Behalf Of Smith, McCoy

> Sent: Wednesday, August 17, 2016 2:54 PM

> To:   license-discuss@opensource.org

> Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: 

> U.S. Army Research Laboratory Open Source License (ARL OSL)

> 0.4.0

> 

> Or to put a finer point on it, the other issues you identify appear to 

> be ones that are explicitly addressed in many already-approved OSI 

> licenses, including Apache 2.0, the one you are modeling your license upon.

> 

> I hope you're getting a sense that there are several lawyers on this 

> mailing list -- lawyers who have years of experience looking at, 

> debating, and giving advice on the issues you identify in this 

> submission -- who think that your proposed license is a variant of 

> Apache 2.0 designed to solve a "problem" for USG users with Apache 2.0 

> that we are skeptical even exists.  Perhaps the ARL lawyers can 

> clarify what the problem is, and that we are missing something.  But I 

> think at least I am having a hard time understanding how this license 

> does anything that Apache 2.0 doesn't.

> 

> -Original Message-

> From: License-discuss

> [Caution-mailto:license-discuss-boun...@opensource.org] On Behalf Of 

> Richard Fontana

> Sent: Wednesday, August 17, 2016 11:33 AM

> To:   license-discuss@opensource.org

> Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: 

> U.S. Army Research Laboratory Open Source License (ARL OSL)

> 0.4.0

> 

> On Wed, Aug 17, 2016 at 06:17:07PM +, Karan, Cem F CIV USARMY 

> RDECOM ARL

> (US) wrote:

> >

> > Once again, liability isn't the only issue; there are also copyright 

> > issues (for contributors), and IP issues.  If we could solve the 

> > problem via a simple disclaimer of liability, we would.  We need to 

Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Karan, Cem F CIV USARMY RDECOM ARL (US)]

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Brian Behlendorf
> Sent: Wednesday, August 17, 2016 4:25 PM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: 
> U.S. Army Research Laboratory Open Source License (ARL OSL)
> 0.4.0
>
> On Wed, 17 Aug 2016, Smith, McCoy wrote:
> > I hope you're getting a sense that there are several lawyers on this
> > mailing list -- lawyers who have years of experience looking at,
> > debating, and giving advice on the issues you identify in this
> > submission -- who think that your proposed license is a variant of
> > Apache 2.0 designed to solve a "problem" for USG users with Apache 2.0
> > that we are skeptical even exists.  Perhaps the ARL lawyers can
> > clarify what the problem is, and that we are missing something.  But I
> > think at least I am having a hard time understanding how this license
> > does anything that Apache 2.0 doesn't.
>
> Is there something that a non-governmental entity can do to help with this, 
> by simply redistributing under AL2.0 that which they obtained
> from ARL by "contract" such as this license?  E.g., if this license was used 
> as the contributor agreement to a project hosted at the Apache
> Software Foundation, could it then be redistributed by the ASF under AL2.0, 
> with appropriate credit given in a Contributing.md?  Being an
> IP laundry service for government is an awful reason to be an Apache 
> project, but if there some other reason for ARL's code to be hosted
> there or at a similar organization (whether NGO or for-profit company even) 
> that might solve the problem, and then doesn't have to
> worry about being an "open source license".  A government agency (or branch 
> of the U.S. military) isn't really a great home for the
> governance of a code base and community anyways.

Actually, this was one of the first things we looked into; not ASF directly, 
but by having a contractor take ownership, and then assign copyright back to 
the USG, or even release it on behalf of the USG.  Unfortunately, it doesn't 
work legally as there is no copyright for the contractor (or anyone else) to 
take over, so nothing to launder.

Thanks,
Cem Karan


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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Karan, Cem F CIV USARMY RDECOM ARL (US)]

The only reason that the ARL OSL was proposed AT ALL is because there is a 
strong concern that since USG code doesn't have copyright [1], any license 
that relies exclusively on copyright may be invalidated by the courts [2].  If 
the USG had copyright, then I could stop pushing the ARL OSL entirely as we 
could use any of the OSI-supplied licenses.

So to be 100% clear, we don't know if any copyright-based license will stand 
up in court for works that don't have copyright attached.  The only reason 
that the ARL OSL was proposed was to deal with that particular situation.  If 
you have case law where the USG won a lawsuit over material licensed under one 
of the copyright-based OSI licenses where there was no claim of copyright, 
please provide it.  I can pass that to the ARL Legal team who can then review 
it.

Thanks,
Cem Karan

[1] I'm making the usual assumption that this was code created by USG 
employees in the course of their duties; copyright can be assigned to the USG 
where and when it exists, but I'm ignoring that for right now.

[2] My expectation is that it would be invalidated for the USG-supplied 
portion, but not for any portion that had copyright attached.  Note that this 
is just my opinion, and I have nothing to back it up.  IANAL.

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Smith, McCoy
> Sent: Wednesday, August 17, 2016 2:54 PM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: 
> U.S. Army Research Laboratory Open Source License (ARL OSL)
> 0.4.0
>
> Or to put a finer point on it, the other issues you identify appear to be 
> ones that are explicitly addressed in many already-approved OSI
> licenses, including Apache 2.0, the one you are modeling your license upon.
>
> I hope you're getting a sense that there are several lawyers on this mailing 
> list -- lawyers who have years of experience looking at,
> debating, and giving advice on the issues you identify in this submission --  
> who think that your proposed license is a variant of Apache 2.0
> designed to solve a "problem" for USG users with Apache 2.0 that we are 
> skeptical even exists.  Perhaps the ARL lawyers can clarify what
> the problem is, and that we are missing something.  But I think at least I 
> am having a hard time understanding how this license does
> anything that Apache 2.0 doesn't.
>
> -Original Message-
> From: License-discuss 
> [Caution-mailto:license-discuss-boun...@opensource.org] On Behalf Of Richard 
> Fontana
> Sent: Wednesday, August 17, 2016 11:33 AM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: 
> U.S. Army Research Laboratory Open Source License (ARL OSL)
> 0.4.0
>
> On Wed, Aug 17, 2016 at 06:17:07PM +, Karan, Cem F CIV USARMY RDECOM ARL 
> (US) wrote:
> >
> > Once again, liability isn't the only issue; there are also copyright
> > issues (for contributors), and IP issues.  If we could solve the
> > problem via a simple disclaimer of liability, we would.  We need to handle 
> > ALL the issues.
>
> Even if you were correct in the assertions you've made about ARL code, why 
> is a new license needed for contributors other than ARL?




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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Karan, Cem F CIV USARMY RDECOM ARL (US)]

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Engel Nyst
> Sent: Wednesday, August 17, 2016 2:59 PM
> To: license-discuss 
> Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: 
> U.S. Army Research Laboratory Open Source License (ARL OSL)
> 0.4.0
>
> On Wed, Aug 17, 2016 at 8:32 PM, Richard Fontana  
> wrote:
> > On Wed, Aug 17, 2016 at 06:17:07PM +, Karan, Cem F CIV USARMY RDECOM 
> > ARL (US) wrote:
> >>
> >> Once again, liability isn't the only issue; there are also copyright
> >> issues (for contributors), and IP issues.  If we could solve the
> >> problem via a simple disclaimer of liability, we would.  We need to 
> >> handle ALL the issues.
> >
> > Even if you were correct in the assertions you've made about ARL code,
> > why is a new license needed for contributors other than ARL?
>
> I'm assuming it's because they (ARL) don't have section 5 otherwise.
>
> ARL OSL can apply to public domain works and have a clause 5 to point to why 
> contributors' code is under AL2.0.
> While arguably unnecessary, I believe I see where they're coming from, it's 
> not hurting, and it's better in a document that equally gives
> from USG all AL2.0-for-public-domain-works including patent grant.
>
> Just my understanding of the needs of the OP.

Precisely; copyright is just one form of IP.  We want to make sure that all IP 
is covered as completely as possible.

Thanks,
Cem Karan



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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Christopher Sean Morrison]

I pleaded with the OSI board to provide formal feedback on the draft Federal 
Open Source Policy during the request for comment phase, but to my knowledge 
nobody did anything.  Opportunity lost.



Indeed, that promised licensing guidance is coming from Federal Source Code 
Policy [1] which was just established.  It's part of the White House's Second 
Open Government National Action Plan, and was 2 years in the making (7 years if 
you count from Obama creating the Open Government Initiative).



The Federal policy actually mandates 20% of all software development must be 
open source, which is unprecedented, albeit currently without measurement 
criteria or enforcement teeth.  That's why I said the White House is prompting 
discussions; they're most definitely getting a lot of folks riled up from the 
highest level.



One of the biggest issues with the policy timing is that they completely punted 
on licensing, copyright, and legal mechanics, merely saying guidance will be 
provided later on code.gov undoubtedly for all the complex reasons being 
discussed here.


That means the clock is now ticking fast to November.


Tony Scott (U.S. Chief Information Officer) could settle things by issuing clarifying 
guidance on copyright and licensing, but his support apparatus will not necessarily exist 
afterwards.  It's most likely that there will not be legal agreement and guidance 
eventually published will amount to "using OSI licensing is a great idea, talk with 
your agency's lawyers on specifically how."



That said, there are some really smart guys working these issues in OMB and DoD 
pressing for change, so the optimist in me remains hopeful.



Cheers!

Sean



[1] https://sourcecode.cio.gov/




On Aug 18, 2016, at 11:47 AM, "Smith, McCoy"  wrote:


Given that the White House just released a memorandum on encouraging the USG to 
make more use of open source, and specifically said that it will be releasing 
licensing guidance on code.gov, perhaps the issues around 17 USC 105 and 
existing open source licenses will be resolved (or at least, the issues around 
existing open source licenses will be identified clearly) on behalf of all the 
USG:
https://www.whitehouse.gov/sites/default/files/omb/memoranda/2016/m_16_21.pdf


-Original Message-
From: License-discuss [mailto:license-discuss-boun...@opensource.org] On Behalf 
Of Christopher Sean Morrison
Sent: Thursday, August 18, 2016 1:27 AM
To: license-discuss@opensource.org
Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. 
Army Research Laboratory Open Source License (ARL OSL) 0.4.0

There is exceptional evidence that the status quo is wholly inadequate. OSI 
fails to recognize challenges faced within the Federal Government, and it hurts 
open source adoption.

Statistically speaking as the largest producer of source code on the planet, the 
U.S. Federal Government *should* be one of the largest participants in open source 
yet there is barely a presence. Some people recognize NASA as one of the largest 
proponents in the Gov’t space, yet they are one of the smaller agencies with one of 
the smallest budgets. Federal R&D, which is predominantly computer science 
work, is more than double the size of NASA’s entire agency! There are more computer 
scientists writing code for the Gov’t than there are for any single company in 
existence, including the likes of Google and Microsoft.

Let that sink in for a minute.

Where is all the code? If it was simply a release issue, there would at least 
be lots of public domain code floating — there’s demonstrably not. [1] If even 
a measurable percentage of Government lawyers felt existing OSI licenses were 
apropos, there would be a ample evidence of agencies using MIT/Apache/LGPL/etc 
— there’s demonstrably not. [2]

There has been presented here a position by at least two major federal agencies 
(DoD and NASA) that copyright-based licensing is specifically viewed as a 
problem by their respective lawyers. There is obvious disagreement and 
uncertainty, but therein lies a fundamental problem. Nobody’s opinion has been 
tested. Nobody can prove that their point is any more or less correct.

Lacking case law evidence, all that remains is overwhelming industry evidence 
that what is currently available is not in any way viewed as adequate in the 
Federal space. At a minimum, there is enough uncertainty that there is zero-% 
penetration.

You have agencies here trying their damnedest to find ways to support open 
source amidst ambiguous regulations, unique legal circumstances (copyright), 
notoriously risk-averse environments, and untested theories. You have specific 
representatives (for huge organizations) here saying “I would use this, it 
would help us”. That to me those make for pretty freaking compelling reasons to 
support any new open source licensing, if it will increase adoption of open 
source in the Federal space.

I ran on this platform for the 2016 OSI board election and 

Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Smith, McCoy]

Interestingly enough, the code of the code.gov site is licensed under CC0 1.0:  
https://github.com/presidential-innovation-fellows/code-gov-web/blob/master/LICENSE.md


From: License-discuss [mailto:license-discuss-boun...@opensource.org] On Behalf 
Of Chris DiBona
Sent: Thursday, August 18, 2016 8:53 AM
To: license-discuss@opensource.org
Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. 
Army Research Laboratory Open Source License (ARL OSL) 0.4.0


Cem, I'd be happy to put you in touch with Alvand in the white house if you are 
not already chatting. Email me off thread if so..

On Aug 18, 2016 8:47 AM, "Smith, McCoy" 
mailto:mccoy.sm...@intel.com>> wrote:
Given that the White House just released a memorandum on encouraging the USG to 
make more use of open source, and specifically said that it will be releasing 
licensing guidance on code.gov, perhaps the issues around 17 
USC 105 and existing open source licenses will be resolved (or at least, the 
issues around existing open source licenses will be identified clearly) on 
behalf of all the USG:
https://www.whitehouse.gov/sites/default/files/omb/memoranda/2016/m_16_21.pdf


-Original Message-
From: License-discuss 
[mailto:license-discuss-boun...@opensource.org]
 On Behalf Of Christopher Sean Morrison
Sent: Thursday, August 18, 2016 1:27 AM
To: license-discuss@opensource.org
Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. 
Army Research Laboratory Open Source License (ARL OSL) 0.4.0

There is exceptional evidence that the status quo is wholly inadequate.  OSI 
fails to recognize challenges faced within the Federal Government, and it hurts 
open source adoption.

Statistically speaking as the largest producer of source code on the planet, 
the U.S. Federal Government *should* be one of the largest participants in open 
source yet there is barely a presence.  Some people recognize NASA as one of 
the largest proponents in the Gov’t space, yet they are one of the smaller 
agencies with one of the smallest budgets.  Federal R&D, which is predominantly 
computer science work, is more than double the size of NASA’s entire agency!  
There are more computer scientists writing code for the Gov’t than there are 
for any single company in existence, including the likes of Google and 
Microsoft.

Let that sink in for a minute.

Where is all the code?  If it was simply a release issue, there would at least 
be lots of public domain code floating — there’s demonstrably not. [1]  If even 
a measurable percentage of Government lawyers felt existing OSI licenses were 
apropos, there would be a ample evidence of agencies using MIT/Apache/LGPL/etc 
— there’s demonstrably not. [2]

There has been presented here a position by at least two major federal agencies 
(DoD and NASA) that copyright-based licensing is specifically viewed as a 
problem by their respective lawyers.  There is obvious disagreement and 
uncertainty, but therein lies a fundamental problem.  Nobody’s opinion has been 
tested.  Nobody can prove that their point is any more or less correct.

Lacking case law evidence, all that remains is overwhelming industry evidence 
that what is currently available is not in any way viewed as adequate in the 
Federal space.  At a minimum, there is enough uncertainty that there is zero-% 
penetration.

You have agencies here trying their damnedest to find ways to support open 
source amidst ambiguous regulations, unique legal circumstances (copyright), 
notoriously risk-averse environments, and untested theories.  You have specific 
representatives (for huge organizations) here saying “I would use this, it 
would help us”.  That to me those make for pretty freaking compelling reasons 
to support any new open source licensing, if it will increase adoption of open 
source in the Federal space.

I ran on this platform for the 2016 OSI board election and missed it by fewer 
votes than I have fingers.  This is a problem to a tremendous number of people. 
 OSI licensing isn’t the only problem [3] faced by the Federal Government, but 
it is one of the most significant that has solutions being presented.  NOSA 1.3 
was offered but was then immediately shot down by FSF (for good reason, why is 
it even still on OSI's list??); NOSA 2.0 won’t likely be a solution without 
rework.  ARL OSL aims to be so transparently compatible that it arguably limits 
proliferation (to the extent you can while creating a new agreement) and has 
much greater adoption potential with ASL’s rigor behind it.

Dissenting won’t make agencies suddenly agree to just slap copyright-based 
licensing on their works or even releasing into PD.  It will just continue to 
be lost opportunities for open source until there is congressional mandate, 
DoJ/DoC clarity, or case law clarity.  White house is currently advocating and 
creating discussion, b

Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Chris DiBona]

Cem, I'd be happy to put you in touch with Alvand in the white house if you
are not already chatting. Email me off thread if so..

On Aug 18, 2016 8:47 AM, "Smith, McCoy"  wrote:

> Given that the White House just released a memorandum on encouraging the
> USG to make more use of open source, and specifically said that it will be
> releasing licensing guidance on code.gov, perhaps the issues around 17
> USC 105 and existing open source licenses will be resolved (or at least,
> the issues around existing open source licenses will be identified clearly)
> on behalf of all the USG:
> https://www.whitehouse.gov/sites/default/files/omb/
> memoranda/2016/m_16_21.pdf
>
>
> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On
> Behalf Of Christopher Sean Morrison
> Sent: Thursday, August 18, 2016 1:27 AM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re:
> U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0
>
> There is exceptional evidence that the status quo is wholly inadequate.
> OSI fails to recognize challenges faced within the Federal Government, and
> it hurts open source adoption.
>
> Statistically speaking as the largest producer of source code on the
> planet, the U.S. Federal Government *should* be one of the largest
> participants in open source yet there is barely a presence.  Some people
> recognize NASA as one of the largest proponents in the Gov’t space, yet
> they are one of the smaller agencies with one of the smallest budgets.
> Federal R&D, which is predominantly computer science work, is more than
> double the size of NASA’s entire agency!  There are more computer
> scientists writing code for the Gov’t than there are for any single company
> in existence, including the likes of Google and Microsoft.
>
> Let that sink in for a minute.
>
> Where is all the code?  If it was simply a release issue, there would at
> least be lots of public domain code floating — there’s demonstrably not.
> [1]  If even a measurable percentage of Government lawyers felt existing
> OSI licenses were apropos, there would be a ample evidence of agencies
> using MIT/Apache/LGPL/etc — there’s demonstrably not. [2]
>
> There has been presented here a position by at least two major federal
> agencies (DoD and NASA) that copyright-based licensing is specifically
> viewed as a problem by their respective lawyers.  There is obvious
> disagreement and uncertainty, but therein lies a fundamental problem.
> Nobody’s opinion has been tested.  Nobody can prove that their point is any
> more or less correct.
>
> Lacking case law evidence, all that remains is overwhelming industry
> evidence that what is currently available is not in any way viewed as
> adequate in the Federal space.  At a minimum, there is enough uncertainty
> that there is zero-% penetration.
>
> You have agencies here trying their damnedest to find ways to support open
> source amidst ambiguous regulations, unique legal circumstances
> (copyright), notoriously risk-averse environments, and untested theories.
> You have specific representatives (for huge organizations) here saying “I
> would use this, it would help us”.  That to me those make for pretty
> freaking compelling reasons to support any new open source licensing, if it
> will increase adoption of open source in the Federal space.
>
> I ran on this platform for the 2016 OSI board election and missed it by
> fewer votes than I have fingers.  This is a problem to a tremendous number
> of people.  OSI licensing isn’t the only problem [3] faced by the Federal
> Government, but it is one of the most significant that has solutions being
> presented.  NOSA 1.3 was offered but was then immediately shot down by FSF
> (for good reason, why is it even still on OSI's list??); NOSA 2.0 won’t
> likely be a solution without rework.  ARL OSL aims to be so transparently
> compatible that it arguably limits proliferation (to the extent you can
> while creating a new agreement) and has much greater adoption potential
> with ASL’s rigor behind it.
>
> Dissenting won’t make agencies suddenly agree to just slap copyright-based
> licensing on their works or even releasing into PD.  It will just continue
> to be lost opportunities for open source until there is congressional
> mandate, DoJ/DoC clarity, or case law clarity.  White house is currently
> advocating and creating discussion, but we’ll see if that survives the
> election.
>
> Cheers!
> Sean
>
> [1] NIST, NASA, and 18F are outliers among hundreds of agencies.
> [2] What you can find are works involving contractors where copyright gets
> assigned.
> [3] Cultural ignorance is so maligned that DoD CIO actually had to tell
> agencies it’s *illegal* to NOT consider open source.
>
>
> > On Aug 17, 2016, at 5:46 PM, Radcliffe, Mark <
> mark.radcli...@dlapiper.com> wrote:
> >
> > I agree with McCoy.  As outside General Counsel of the OSI for more than
>

Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Smith, McCoy]

Given that the White House just released a memorandum on encouraging the USG to 
make more use of open source, and specifically said that it will be releasing 
licensing guidance on code.gov, perhaps the issues around 17 USC 105 and 
existing open source licenses will be resolved (or at least, the issues around 
existing open source licenses will be identified clearly) on behalf of all the 
USG:
https://www.whitehouse.gov/sites/default/files/omb/memoranda/2016/m_16_21.pdf


-Original Message-
From: License-discuss [mailto:license-discuss-boun...@opensource.org] On Behalf 
Of Christopher Sean Morrison
Sent: Thursday, August 18, 2016 1:27 AM
To: license-discuss@opensource.org
Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. 
Army Research Laboratory Open Source License (ARL OSL) 0.4.0

There is exceptional evidence that the status quo is wholly inadequate.  OSI 
fails to recognize challenges faced within the Federal Government, and it hurts 
open source adoption.

Statistically speaking as the largest producer of source code on the planet, 
the U.S. Federal Government *should* be one of the largest participants in open 
source yet there is barely a presence.  Some people recognize NASA as one of 
the largest proponents in the Gov’t space, yet they are one of the smaller 
agencies with one of the smallest budgets.  Federal R&D, which is predominantly 
computer science work, is more than double the size of NASA’s entire agency!  
There are more computer scientists writing code for the Gov’t than there are 
for any single company in existence, including the likes of Google and 
Microsoft.

Let that sink in for a minute.

Where is all the code?  If it was simply a release issue, there would at least 
be lots of public domain code floating — there’s demonstrably not. [1]  If even 
a measurable percentage of Government lawyers felt existing OSI licenses were 
apropos, there would be a ample evidence of agencies using MIT/Apache/LGPL/etc 
— there’s demonstrably not. [2]

There has been presented here a position by at least two major federal agencies 
(DoD and NASA) that copyright-based licensing is specifically viewed as a 
problem by their respective lawyers.  There is obvious disagreement and 
uncertainty, but therein lies a fundamental problem.  Nobody’s opinion has been 
tested.  Nobody can prove that their point is any more or less correct.

Lacking case law evidence, all that remains is overwhelming industry evidence 
that what is currently available is not in any way viewed as adequate in the 
Federal space.  At a minimum, there is enough uncertainty that there is zero-% 
penetration.

You have agencies here trying their damnedest to find ways to support open 
source amidst ambiguous regulations, unique legal circumstances (copyright), 
notoriously risk-averse environments, and untested theories.  You have specific 
representatives (for huge organizations) here saying “I would use this, it 
would help us”.  That to me those make for pretty freaking compelling reasons 
to support any new open source licensing, if it will increase adoption of open 
source in the Federal space.

I ran on this platform for the 2016 OSI board election and missed it by fewer 
votes than I have fingers.  This is a problem to a tremendous number of people. 
 OSI licensing isn’t the only problem [3] faced by the Federal Government, but 
it is one of the most significant that has solutions being presented.  NOSA 1.3 
was offered but was then immediately shot down by FSF (for good reason, why is 
it even still on OSI's list??); NOSA 2.0 won’t likely be a solution without 
rework.  ARL OSL aims to be so transparently compatible that it arguably limits 
proliferation (to the extent you can while creating a new agreement) and has 
much greater adoption potential with ASL’s rigor behind it.

Dissenting won’t make agencies suddenly agree to just slap copyright-based 
licensing on their works or even releasing into PD.  It will just continue to 
be lost opportunities for open source until there is congressional mandate, 
DoJ/DoC clarity, or case law clarity.  White house is currently advocating and 
creating discussion, but we’ll see if that survives the election.

Cheers!
Sean

[1] NIST, NASA, and 18F are outliers among hundreds of agencies.
[2] What you can find are works involving contractors where copyright gets 
assigned.
[3] Cultural ignorance is so maligned that DoD CIO actually had to tell 
agencies it’s *illegal* to NOT consider open source. 


> On Aug 17, 2016, at 5:46 PM, Radcliffe, Mark  
> wrote:
> 
> I agree with McCoy.  As outside General Counsel of the OSI for more than 10 
> years, the drafting of a new "open source" license requires strong reasons.  
> The reasons that I have seen in the list don't meet that standard.  I 
> strongly recommend against trying to develop a new "open source" license. 
> 
> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@op

Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Richard Fontana]

On Thu, Aug 18, 2016 at 02:50:18PM +, Karan, Cem F CIV USARMY RDECOM ARL 
(US) wrote:
> >
> > Even if you were correct in the assertions you've made about ARL code, why 
> > is a new license needed for contributors other than ARL?
> 
> Are you suggesting a dual license scheme, where all copyrighted portions are 
> under Apache 2.0, and all non-copyrighted portions are under the ARL OSL?

No, I'm just suggesting why not adopt a rule that all contributors
(other than ARL -- though for the reasons others have stated I think
this should also apply to ARL) license contributions under the Apache
License 2.0.

As a few have pointed out, all code that is nominally licensed under
open source licenses will contain noncopyrighted portions.
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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Karan, Cem F CIV USARMY RDECOM ARL (US)]

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Richard Fontana
> Sent: Wednesday, August 17, 2016 2:33 PM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: 
> U.S. Army Research Laboratory Open Source License (ARL OSL)
> 0.4.0
>
> On Wed, Aug 17, 2016 at 06:17:07PM +, Karan, Cem F CIV USARMY RDECOM ARL 
> (US) wrote:
> >
> > Once again, liability isn't the only issue; there are also copyright
> > issues (for contributors), and IP issues.  If we could solve the
> > problem via a simple disclaimer of liability, we would.  We need to handle 
> > ALL the issues.
>
> Even if you were correct in the assertions you've made about ARL code, why 
> is a new license needed for contributors other than ARL?

Are you suggesting a dual license scheme, where all copyrighted portions are 
under Apache 2.0, and all non-copyrighted portions are under the ARL OSL?

Thanks,
Cem Karan



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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Christopher Sean Morrison]

There is exceptional evidence that the status quo is wholly inadequate.  OSI 
fails to recognize challenges faced within the Federal Government, and it hurts 
open source adoption.

Statistically speaking as the largest producer of source code on the planet, 
the U.S. Federal Government *should* be one of the largest participants in open 
source yet there is barely a presence.  Some people recognize NASA as one of 
the largest proponents in the Gov’t space, yet they are one of the smaller 
agencies with one of the smallest budgets.  Federal R&D, which is predominantly 
computer science work, is more than double the size of NASA’s entire agency!  
There are more computer scientists writing code for the Gov’t than there are 
for any single company in existence, including the likes of Google and 
Microsoft.

Let that sink in for a minute.

Where is all the code?  If it was simply a release issue, there would at least 
be lots of public domain code floating — there’s demonstrably not. [1]  If even 
a measurable percentage of Government lawyers felt existing OSI licenses were 
apropos, there would be a ample evidence of agencies using MIT/Apache/LGPL/etc 
— there’s demonstrably not. [2]

There has been presented here a position by at least two major federal agencies 
(DoD and NASA) that copyright-based licensing is specifically viewed as a 
problem by their respective lawyers.  There is obvious disagreement and 
uncertainty, but therein lies a fundamental problem.  Nobody’s opinion has been 
tested.  Nobody can prove that their point is any more or less correct.

Lacking case law evidence, all that remains is overwhelming industry evidence 
that what is currently available is not in any way viewed as adequate in the 
Federal space.  At a minimum, there is enough uncertainty that there is zero-% 
penetration.

You have agencies here trying their damnedest to find ways to support open 
source amidst ambiguous regulations, unique legal circumstances (copyright), 
notoriously risk-averse environments, and untested theories.  You have specific 
representatives (for huge organizations) here saying “I would use this, it 
would help us”.  That to me those make for pretty freaking compelling reasons 
to support any new open source licensing, if it will increase adoption of open 
source in the Federal space.

I ran on this platform for the 2016 OSI board election and missed it by fewer 
votes than I have fingers.  This is a problem to a tremendous number of people. 
 OSI licensing isn’t the only problem [3] faced by the Federal Government, but 
it is one of the most significant that has solutions being presented.  NOSA 1.3 
was offered but was then immediately shot down by FSF (for good reason, why is 
it even still on OSI's list??); NOSA 2.0 won’t likely be a solution without 
rework.  ARL OSL aims to be so transparently compatible that it arguably limits 
proliferation (to the extent you can while creating a new agreement) and has 
much greater adoption potential with ASL’s rigor behind it.

Dissenting won’t make agencies suddenly agree to just slap copyright-based 
licensing on their works or even releasing into PD.  It will just continue to 
be lost opportunities for open source until there is congressional mandate, 
DoJ/DoC clarity, or case law clarity.  White house is currently advocating and 
creating discussion, but we’ll see if that survives the election.

Cheers!
Sean

[1] NIST, NASA, and 18F are outliers among hundreds of agencies.
[2] What you can find are works involving contractors where copyright gets 
assigned.
[3] Cultural ignorance is so maligned that DoD CIO actually had to tell 
agencies it’s *illegal* to NOT consider open source. 


> On Aug 17, 2016, at 5:46 PM, Radcliffe, Mark  
> wrote:
> 
> I agree with McCoy.  As outside General Counsel of the OSI for more than 10 
> years, the drafting of a new "open source" license requires strong reasons.  
> The reasons that I have seen in the list don't meet that standard.  I 
> strongly recommend against trying to develop a new "open source" license. 
> 
> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Smith, McCoy
> Sent: Wednesday, August 17, 2016 11:54 AM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. 
> Army Research Laboratory Open Source License (ARL OSL) 0.4.0
> 
> Or to put a finer point on it, the other issues you identify appear to be 
> ones that are explicitly addressed in many already-approved OSI licenses, 
> including Apache 2.0, the one you are modeling your license upon.
> 
> I hope you're getting a sense that there are several lawyers on this mailing 
> list -- lawyers who have years of experience looking at, debating, and giving 
> advice on the issues you identify in this submission -- who think that your 
> proposed license is a variant of Apache 2.0 designed to solve a "problem" for 
> USG users wit