Very interesting write-up, Maarten. Thanks for writing and sharing it! The MET PD image database is pretty awesome work on their part. I referenced some materials from there a couple month myself despite not noticing they put an NC clause on it. Personally, I can’t imagine them having standing if they tried to take anyone to court. I agree that it’s “bad practice” but mostly because it creates marketplace confusion and doesn’t conform with the OSD.
The difference here, I think, is that the contract/license is not aiming to restrict access or use of the code. On the contrary, it establishes terms on contributors (e.g., similar to a CLA) and explicitly disavows liability. The prior doesn’t require copyright and recursively applies. The latter is arguably unnecessary, but not harmful or restrictive. The question in my mind is whether any of the other requirements in the contract/license are essentially unenforceable because of the lack of rights. In ASL2’s terms, that could be Clause 4 (Redistribution). The end result of being unenforcible would merely wipe attribution but I’d expect the rest to remain intact. Cheers! Sean > On Aug 3, 2016, at 9:29 AM, Maarten Zeinstra <m...@kl.nl> wrote: > > Hi Kevin and Cem, > > I think the confusion here is indeed about ownership vs, access, As I > understand Cem’s project he wants to provide access to third parties to its > code and wants to ‘license’ it. However open source license (afaik) deal with > the ownership part of the code and does not deal in restricting access to the > code. > > I think Cem is indeed on the right track with #3 in his reply. You cannot > rely on copyright, you could only focus on any patent aspects of open source > license. Coming from the Creative Commons world, I do not know about patents > in Open Source licenses. > > I also think that is near impossible to enforce access limiting contracts in > a one-to-all way. I wrote an opinion about a related situation about the New > York Metropolitan Museum that provided free downloads of its public domain > images but restricted those downloads to non-commercial use: > https://www.kl.nl/en/opinion/why-the-met-does-not-open-any-real-doors/ > <https://www.kl.nl/en/opinion/why-the-met-does-not-open-any-real-doors/> > (tl;dr: you cannot enforce general rules about free downloads, and it is a > bad practise to try to do so). > > the USG cannot enforce open source license as they have no underlying > copyright, any contract drafted that is similar to an open source license > without the licensing of copyright and limiting the access or reuse of the > work should not be considered a open source license and fall into the > category of bad practise. > > Re: Berne Convention. Sure Page Miller is right. But try and proof me wrong > :) but no country in the world has a paragraph in their national copyright > act that provides the USG with copyright where they do not hold that > nationally. They would rely on the absence of formalities but that means you > do need in a rights holder in the country of origine, which does not exist. > > Regards, > > Maarten > > -- > Kennisland | www.kl.nl <http://www.kl.nl/> | t +31205756720 | m +31643053919 > | @mzeinstra > >> On 03 Aug 2016, at 15:17, Karan, Cem F CIV USARMY RDECOM ARL (US) >> <cem.f.karan....@mail.mil <mailto:cem.f.karan....@mail.mil>> wrote: >> >> I just got off the phone with Page Miller in the US Copyright office >> (http://www.copyright.gov/ <http://www.copyright.gov/>). She is the person >> at the USG that specializes in these types of questions. She told me that >> the Berne convention does not change laws in individual countries, it just >> removes certain formalities. As such, if the foreign government permits the >> USG to hold copyright in the foreign country, then the USG is permitted to >> do so. You can contact the copyright office at copyi...@loc.gov >> <mailto:copyi...@loc.gov>. If you put in a line like 'Attention: Page >> Miller', it will get routed to her to answer. >> >> So, the very latest position of the USG is that it can apply for copyright >> protections for USG-produced works that have no copyright within the US. >> >> Thanks, >> Cem Karan >> >>> -----Original Message----- >>> From: License-discuss [mailto:license-discuss-boun...@opensource.org >>> <mailto:license-discuss-boun...@opensource.org>] On Behalf Of Maarten >>> Zeinstra >>> Sent: Monday, August 01, 2016 4:36 AM >>> To: license-discuss@opensource.org <mailto:license-discuss@opensource.org> >>> Cc: lro...@rosenlaw.com <mailto:lro...@rosenlaw.com> >>> Subject: Re: [License-discuss] [Non-DoD Source] Re: US Army Research >>> Laboratory Open Source License proposal >>> >>> All active links contained in this email were disabled. Please verify the >>> identity of the sender, and confirm the authenticity of all links >>> contained within the message prior to copying and pasting the address to a >>> Web browser. >>> >>> >>> ________________________________ >>> >>> >>> >>> I did some further investigating into this. The sources that I and John >>> refer to are from 1976, which is pre-Berne (US in force: March 1, >>> 1989). So this would further cast doubts on the claims of copyright abroad >>> of the US government. >>> >>> Regards, >>> >>> Maarten >>> >>> >>> >>> -- >>> Kennisland | Caution-www.kl.nl <http://caution-www.kl.nl/> < >>> Caution-http://www.kl.nl <caution-http://www.kl.nl> > | t +31205756720 | m >>> +31643053919 | @mzeinstra >>> >>> >>> On 01 Aug 2016, at 10:20, Maarten Zeinstra <m...@kl.nl >>> <mailto:m...@kl.nl> < Caution-mailto:m...@kl.nl <mailto:m...@kl.nl> > > >>> wrote: >>> >>> Hi Cem, >>> >>> I believe this was already answered John Cowan, I was proven wrong. US >>> does assert copyright for government works in other >>> jurisdictions. Wikipedia provides these sources: >>> >>> “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.” - House Report No. 94-1476 >>> >>> and >>> >>> “3.1.7 Does the Government have copyright protection in U.S. >>> Government works in other countries? >>> Yes, the copyright exclusion for works of the U.S. Government is not >>> intended to have any impact on protection of these works >>> abroad (S. REP. NO. 473, 94th Cong., 2d Sess. 56 (1976)). Therefore, the >>> U.S. Government may obtain protection in other countries >>> depending on the treatment of government works by the national copyright >>> law of the particular country. Copyright is sometimes >>> asserted by U.S. Government agencies outside the United States.” >>> Caution-http://www.cendi.gov/publications/04-8copyright.html#317 >>> <caution-http://www.cendi.gov/publications/04-8copyright.html#317> < >>> Caution-http://www.cendi.gov/publications/04-8copyright.html#317 >>> <caution-http://www.cendi.gov/publications/04-8copyright.html#317> > >>> >>> However I am not sure how this would work with the Berne Convention, >>> especially article 7(8) which states: ‘[..] the term shall be >>> governed by the legislation of the country where protection is claimed; >>> however, unless the legislation of that country otherwise provides, >>> the term shall not exceed the term fixed in the country of origin of the >>> work.’ If the U.S. term of protection is 0 years, than other countries >>> would also apply 0 years. >>> >>> @John, @Cem: do you have some case law about this? I would like to >>> verify this with my academic network in the U.S. If not, any >>> license you want to apply on this material is immediately void (which is >>> only a theoretical problem imo). >>> >>> Regards, >>> >>> Maarten >>> >>> -- >>> Kennisland | Caution-www.kl.nl <http://caution-www.kl.nl/> < >>> Caution-http://www.kl.nl/ <caution-http://www.kl.nl/> > | t +31205756720 | >>> m +31643053919 | @mzeinstra >>> >>> >>> On 29 Jul 2016, at 19:37, Karan, Cem F CIV USARMY RDECOM ARL >>> (US) <cem.f.karan....@mail.mil <mailto:cem.f.karan....@mail.mil> < Caution- >>> mailto:cem.f.karan....@mail.mil <mailto:cem.f.karan....@mail.mil> > > wrote: >>> >>> I'm sorry for getting back late to this, the lawyer I'm working >>> with was called away for a bit and couldn't reply. >>> >>> I asked specifically about this case; in our lawyer's opinion, >>> the US Government does have copyright in foreign (to the US) >>> countries. He says that there is case law where the US has asserted this, >>> but he is checking to see if he can find case law regarding this to >>> definitively answer the question. >>> >>> Thanks, >>> Cem Karan >>> >>> >>> >>> -----Original Message----- >>> From: License-discuss >>> [Caution-mailto:license-discuss-boun...@opensource.org >>> <mailto:license-discuss-boun...@opensource.org> < >>> Caution-mailto:license-discuss- >>> boun...@opensource.org <mailto:boun...@opensource.org> > ] On Behalf Of >>> Maarten Zeinstra >>> Sent: Sunday, July 24, 2016 7:49 AM >>> To: license-discuss@opensource.org >>> <mailto:license-discuss@opensource.org> < >>> Caution-mailto:license-discuss@opensource.org >>> <mailto:license-discuss@opensource.org> > >>> Cc: lro...@rosenlaw.com <mailto:lro...@rosenlaw.com> < >>> Caution-mailto:lro...@rosenlaw.com <mailto:lro...@rosenlaw.com> > >>> Subject: [Non-DoD Source] Re: [License-discuss] US Army >>> Research Laboratory Open Source License proposal >>> >>> All active links contained in this email were disabled. >>> Please verify the identity of the sender, and confirm the >>> authenticity of all links >>> contained within the message prior to copying and >>> pasting the address to a Web browser. >>> >>> >>> ________________________________ >>> >>> >>> >>> Hi, >>> >>> Yes I am suggesting that if the country of origin of >>> the work does not assign copyright to the work then no >>> copyright is assigned world- >>> wide. My reasoning is that there is no entity to assign >>> that copyright to. >>> >>> An example in a different field might support my >>> argument. >>> >>> In the Netherlands we automatically assign (not >>> transfer, which is important here) any IP rights of the employee >>> to the employer if works >>> are created within the duties of the employee. That >>> means that the employer is the rights holder. This rights >>> holder is consequently also >>> recognised as the rights holder in other jurisdictions. >>> Who might, given a similar situation in their own >>> jurisdiction, normally assign the >>> right to the employee. >>> >>> Now if there is no rights holder to begin with (the >>> U.S. waives it rights on government produced works as I >>> understand, the Netherlands >>> government does the same), then no foreign rights can >>> be assigned as well. Hence the work must be in the public >>> domain world wide. >>> >>> I have more experience with Creative Commons-licenses >>> than with Open Source license, but in CC licenses the >>> license exists for the >>> duration of the right. I assume all Open Source >>> licenses are basically the same in this regard. In that sense it does >>> not matter which license >>> is applied as the license is immediately void, since >>> there is no underlying right to license. >>> >>> Finally, in the past I have advised the dutch >>> government to adopt CC0 to make the public domain status of their >>> works clear. They have >>> adopted this since ~2011 on their main site: >>> Caution-Caution-https://www.government.nl/copyright >>> <caution-caution-https://www.government.nl/copyright> < caution- >>> Caution-https://www.government.nl/copyright >>> <caution-https://www.government.nl/copyright> > < Caution- >>> Caution-https://www.government.nl/copyright >>> <caution-https://www.government.nl/copyright> < >>> Caution-https://www.government.nl/copyright >>> <caution-https://www.government.nl/copyright> > > (english >>> version). I advise the US army does something similar as well. >>> >>> Regards, >>> >>> Maarten Zeinstra >>> >>> -- >>> Kennisland | Caution-Caution-www.kl.nl >>> <http://caution-caution-www.kl.nl/> < >>> Caution-http://caution-Caution-www.kl.nl/ >>> <caution-http://caution-Caution-www.kl.nl/> > < Caution-Caution- >>> http://www.kl.nl <http://www.kl.nl/> < caution-Caution-http://www.kl.nl >>> <caution-caution-http://www.kl.nl> > > | t +31205756720 | m +31643053919 >>> | @mzeinstra >>> >>> >>> On 24 Jul 2016, at 08:26, Philippe Ombredanne >>> <pombreda...@nexb.com <mailto:pombreda...@nexb.com> < Caution- >>> mailto:pombreda...@nexb.com <mailto:pombreda...@nexb.com> > < >>> Caution-Caution-mailto:pombreda...@nexb.com <mailto:pombreda...@nexb.com> < >>> Caution-mailto:pombreda...@nexb.com <mailto:pombreda...@nexb.com> > > > >>> wrote: >>> >>> On Fri, Jul 22, 2016 at 11:23 PM, Lawrence Rosen >>> <lro...@rosenlaw.com <mailto:lro...@rosenlaw.com> < >>> Caution-mailto:lro...@rosenlaw.com <mailto:lro...@rosenlaw.com> >>>> < Caution-Caution-mailto:lro...@rosenlaw.com <mailto:lro...@rosenlaw.com> >>>> < Caution-mailto:lro...@rosenlaw.com <mailto:lro...@rosenlaw.com> > > > >>>> wrote: >>> >>> >>> >>> It is true that this public domain result doesn't apply >>> outside the U.S. But >>> if you apply a valid open source license to it – such >>> as Apache 2.0 – that >>> should be good enough for everyone who doesn't live in >>> the U.S. and >>> irrelevant for us here. >>> >>> >>> >>> Larry, are you suggesting that Cem considers using >>> some statement more >>> or less like this, rather than a new license? >>> This U.S. Federal Government work is not copyrighted >>> and dedicated >>> to the public domain in the USA. Alternatively, the >>> Apache-2.0 >>> license applies >>> outside of the USA ? >>> >>> On Sat, Jul 23, 2016 at 9:51 AM, Maarten Zeinstra >>> <m...@kl.nl <mailto:m...@kl.nl> < Caution-mailto:m...@kl.nl >>> <mailto:m...@kl.nl> > < Caution-Caution- >>> mailto:m...@kl.nl <mailto:m...@kl.nl> < Caution-mailto:m...@kl.nl >>> <mailto:m...@kl.nl> > > > wrote: >>> >>> >>> >>> Is that the correct interpretation of the Berne >>> convention? The convention >>> assigns copyright to foreigners of a signatory state >>> with at least as strong >>> protection as own nationals. Since US government does >>> not attract copyright >>> I am unsure if they can attract copyright in other >>> jurisdictions. >>> >>> >>> >>> Maarten, are you suggesting then that the lack of >>> copyright for a U.S. Federal >>> Government work would just then apply elsewhere too and >>> that using an >>> alternative Apache license would not even be needed? >>> >>> -- >>> Cordially >>> Philippe Ombredanne >>> >>> +1 650 799 0949 | pombreda...@nexb.com >>> <mailto:pombreda...@nexb.com> < Caution-mailto:pombreda...@nexb.com >>> <mailto:pombreda...@nexb.com> > < Caution-Caution- >>> mailto:pombreda...@nexb.com <mailto:pombreda...@nexb.com> < >>> Caution-mailto:pombreda...@nexb.com <mailto:pombreda...@nexb.com> > > >>> DejaCode : What's in your code?! at >>> Caution-Caution-http://www.dejacode.com >>> <caution-caution-http://www.dejacode.com> < caution-Caution- >>> http://www.dejacode.com <http://www.dejacode.com/> > < >>> Caution-Caution-http://www.dejacode.com >>> <caution-caution-http://www.dejacode.com> < >>> caution-Caution-http://www.dejacode.com >>> <caution-caution-http://www.dejacode.com> > > >>> nexB Inc. at Caution-Caution-http://www.nexb.com >>> <caution-caution-http://www.nexb.com> < caution-Caution-http://www.nexb.com >>> <caution-caution-http://www.nexb.com> > < Caution- >>> Caution-http://www.nexb.com <caution-http://www.nexb.com> < >>> caution-Caution-http://www.nexb.com <caution-caution-http://www.nexb.com> > >>> > >>> _______________________________________________ >>> License-discuss mailing list >>> License-discuss@opensource.org >>> <mailto:License-discuss@opensource.org> < >>> Caution-mailto:License-discuss@opensource.org >>> <mailto:License-discuss@opensource.org> > < Caution-Caution- >>> mailto:License-discuss@opensource.org >>> <mailto:License-discuss@opensource.org> < >>> Caution-mailto:License-discuss@opensource.org >>> <mailto:License-discuss@opensource.org> > > >>> >>> Caution-Caution-https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss >>> >>> <caution-caution-https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss> >>> < caution-Caution- >>> https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss >>> <https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss> > >>> >>> >>> >>> >>> >>> _______________________________________________ >>> License-discuss mailing list >>> License-discuss@opensource.org >>> <mailto:License-discuss@opensource.org> < >>> Caution-mailto:License-discuss@opensource.org >>> <mailto:License-discuss@opensource.org> > >>> >>> Caution-https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss >>> >>> <caution-https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss> >>> < Caution-https://lists.opensource.org/cgi- >>> <caution-https://lists.opensource.org/cgi-> >>> bin/mailman/listinfo/license-discuss > >>> >>> >> >> _______________________________________________ >> License-discuss mailing list >> License-discuss@opensource.org <mailto:License-discuss@opensource.org> >> https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss > > _______________________________________________ > License-discuss mailing list > License-discuss@opensource.org > https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss
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