On 2/19/18, 8:38 AM, "License-discuss on behalf of Ben Hilburn" 
 on behalf of bhilb...@gmail.com<mailto:bhilb...@gmail.com>> wrote:
Not sure I'm following your argument, here? If a party has been contracted by 
the government to write code, as part of contract negotiations the government 
can require that the code be delivered as FOSS. Especially with the recent 
changes in the NDAA, the government is clearly trying to push acquisition 
officers to be more knowledgeable about these things.
My point was that there may be no contractor code at all and therefore there is 
no code under any sort of FOSS license, just public domain.  Depending on the 
existence of contractor developed code under a FOSS license to make the entire 
code base FOSS doesn’t work in this case.

The DDS policies posted online don't discuss patents much, aside from a bit in 
the license selection portion, "Our suggestions for permissive licenses are 
MIT, ISC, or BSD-3 unless patents are potentially involved in which case we 
suggest Apache 2.0 although the others work too." I have no idea how 
intra-government but inter-org patent licensing works, though, so I don't have 
anything to add to this piece of the discussion. It's worth noting, though, 
that the broader open-source community has long dealt with the same question, 
"what if someone unknowingly implements a patent and publishes it under the 
Apache license," problem that you raise here; I don't think it's unique.

The use of Apache 2.0 is problematic because it IS a fairly unique problem.  
The issue is the USG as a single entity implies that a patent grant under 
Apache 2.0 provided by the ARL gives that patent away even if it was not 
created by the ARL but some other part of the federal government.

Your scenario is different where the developers implements a patent someone 
else owns.  They don’t own the patent so the patent grant under Apache is 

The only place that the broader open-source community has dealt with this issue 
is in the educational world which is why we have ECL v2.  Which is Apache with 
a patent grant only for those patents owned by the authors of the code.
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