> -----Original Message----- > From: License-discuss [mailto:license-discuss-boun...@opensource.org] On > Behalf Of Engel Nyst > Sent: Tuesday, August 16, 2016 4:42 PM > To: license-discuss <license-discuss@opensource.org> > Subject: Re: [License-discuss] [Non-DoD Source] Re: U.S. Army Research > Laboratory Open Source License (ARL OSL) 0.4.0 > > On Tue, Aug 16, 2016 at 9:43 PM, Karan, Cem F CIV USARMY RDECOM ARL > (US) <cem.f.karan....@mail.mil> wrote: > > OK, I see where you're coming from now. I had to have the ARL Legal > > team explain this to me as well, but the ARL OSL is actually a > > contract, and the contract can apply even if there is no copyright. > > We release material to our collaborators on a regular basis under > > contract; we even do this with software, even though it is in the > > public domain. If they break the contract, we can sue them, but we > > can't sue anyone that they delivered the software to (it's in the > > public domain, so we don't have any copyright protections to sue > > over). The ARL OSL extends this as a chain; the USG releases the > > software to anyone that wants to download it, but by downloading it, > > they agree to the contract. That person in turn can hand off the > > software to another person, forming the chain. However, if the chain > > is broken, the USG only has the right to sue the first person that > > broke the chain; the others may be able to claim that they got the > > software in good faith. Since there is no copyright involved, and > > since they didn't break the contract, they are innocent; only the > > person that broke the chain originally is liable (note that I'm not a > > lawyer, and may have gotten some of this wrong; it's just my understanding > > from the ARL Legal team). This means that to sue, the USG > will need to prove that the person was the first one in the chain to break > the contract. > > > > Copyright is something entirely different from contract law. > > Copyright is a bundle of rights that an author gets by creating a > > work. The license allows a user to use the work without getting > > sued/stopped/etc. The trick is that since copyright attaches to a > > work AND since you can't copy/use/display/perform/etc. a work without > > permission from the copyright holders, you have to be able to point to > > the license that allows you to use the work without being sued. That > > means that a copyright holder doesn't need to follow a chain, it just > > needs to demonstrate that it has copyright on the work, and that its > > license is being violated. > > > > The closest analogy I can provide is that contract law is innocent > > until proven guilty, while copyright is guilty until proven innocent. > > I understand the intention, and I know it seems tempting to work via > contract, but here's the problem: > > Caution-https://www.law.cornell.edu/uscode/text/17/301 > > "On and after January 1, 1978, all legal or equitable rights that are > equivalent to any of the exclusive rights within the general scope of > copyright as specified by section 106 in works of authorship that are fixed > in a tangible medium of expression and come within the subject > matter of copyright as specified by sections 102 and 103, whether created > before or after that date and whether published or > unpublished, are governed exclusively by this title. Thereafter, no person > is entitled to any such right or equivalent right in any such work > under the common law or statutes of any State." > > Some claims of breaches of contract will fall squarely into what this > paragraph says: they would claim the same thing as the rights under > copyright. > > In other words: if A tries to make a contract with B, where A says "you > can't reproduce this work", that obligation lives or dies via > copyright alone. (if nothing else is involved) > > From what you say, you intend here exactly that: to recreate the rights to > reproduce, distribute, or make derivative works, or to put > obligations as if you had them, through contract. It seems to me that > copyright law already says USG can't do that. > > You can do a lot of contracts, to be sure; just not those who simulate > copyright.
Got it; I'm going to forward your comments to the ARL Lawyer I'm working with to see what his opinion is. He's on vacation for another week though, so I won't be able to give you a good response until then. > Caselaw on this exact topic seems a mess. I don't know what would come of > this; without getting into it, here's my suggestion, considering > all I understand from your intentions: > > The interesting thing with your intended license/contract is that preemption > doesn't matter for malevolent contributors: you can STILL > make it so that contributors will provide their (presumably copyrightable) > work under it, in your projects. > Because only clauses > 2 and 4 would be affected by preemption, redrafting the license/contract so > that the rest stands in all cases should give you the same > effect (or close). > > Apache license is almost unique in the following respect: there are 2 > explicit directions in which it works. > > Direction (1) - from USG/others to the world. > > Here you have the problem that if you start without copyright, and the > license tries to usurp the domain of copyright rights, that can make > it all fail. You said it yourself: the concern is that it depends on > copyright, and thus may all be deemed invalid. > Indeed, I'm just saying that recreating copyright-like rights via contract > where title 17 clearly denied them, > can also be deemed invalid. Definitely bringing this up with our lawyers! My intent was that if there was copyright, then we could stand on copyright law; if there wasn't, then we'd fallback onto contract law. If the ARL OSL can't accomplish that, or worse, manages to invalidate itself in some manner, then that is a serious problem. > Direction (2) - from a "contributor" to USG and the world, via "intentional > submission for inclusion in the Work" (clause 5). > > This direction (2) doesn't depend on copyright, nor on direction (1). > In order to argue that > it applies, at least in many cases, I'd suggest you need a good > contract/license, one that would stand when someone "intentionally > submits for inclusion in the Work to the Licensor". Because with a > license/contract, ANY work "intentionally submitted" is licensed by its > author under ARL OSL. > > Including patent grant, and things like the case you pointed out on > wikipedia shouldn't happen. Agreed! > >> But I'm not sure what you're worried about, sue for what? These > >> (a)-(d) obligations have nothing to do with suing users, do they? ARL > >> OSL has all the other clauses, which apply fine regardless of whether > >> the underlying Work is copyrighted or not, like disclaimers of > >> liability and clause 5. > > > > No, the problem is that removing those terms suggests that you can > > strip out the ARL OSL from any part that is in the public domain. > > Once that happens, the material no longer has the ARL OSL protecting > > downstream users from predatory and unscrupulous individuals. That's all. > > ARL OSL would apply for the projects under ARL OSL, including > *contributors* to these projects. > > It wouldn't apply if I take the software and reproduce it on my own (without > contributing anything anywhere). OK, so what you're saying is that some person A can download the software and redistribute it to some person B. A is under contract to the USG by the ARL OSL, but since A didn't make a contribution, the contract terminates with that person, leaving B free to sue over whatever claims they wish to make, correct? I don't see how B can successfully sue A, because A can just point to the USG stating that the USG was responsible for the code. If B then sues the USG, the USG will point at the ARL OSL which covers itself and all contributors. If a particular contributor took B's copyrighted or patented work without permission, then that contributor is at fault (the USG itself could be a contributor, so it may have to defend itself in court as well). B may be able to sue over liability, but I'm not sure how that would play out (another question for ARL Legal). > It wouldn't apply if I make a derivative work and try to fool my downstream > by, I don't know, revoking the license I claimed to give them. > But that's also true of Apache License 2.0. So the ARL OSL is compatible with Apache 2.0 in that way too! ;) Thanks, Cem Karan
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