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