Cem Karan wrote: . . . the truly serious issue is severability <https://en.wikipedia.org/wiki/Severability> https://en.wikipedia.org/wiki/Severability). The concern is that if the USG uses a license that depends on copyright (e.g., Apache 2.0), and those clauses are declared unenforceable by the courts, then it may be possible to declare the entire license unenforceable.
Apache-licensed software also may (and frequently does) contain public domain components. Are you suggesting that "severability" is a potential problem with Apache software? The US government isn't special. /Larry -----Original Message----- From: License-discuss [mailto:license-discuss-boun...@opensource.org] On Behalf Of Karan, Cem F CIV USARMY RDECOM ARL (US) Sent: Monday, February 27, 2017 9:01 AM To: license-discuss@opensource.org Subject: [License-discuss] U.S. Army Research Laboratory Open Source License (ARL OSL) Version 0.4.1 All, I've been asked to republish the U.S. Army Research Laboratory Open Source License (ARL OSL) once again so that others can read it. This is the most current copy. It is based off of the Apache 2.0 license that can be found at <http://www.apache.org/licenses/LICENSE-2.0.txt> http://www.apache.org/licenses/LICENSE-2.0.txt, and is intended to make US Government (USG) works released under it completely interoperable with the Apache 2.0 license, while still dealing with the fact that most USG works do not have copyright protections. See further down this message as to why this is necessary. The goals of the license are as follows: - Protect the USG, contributors, and users of all work licensed under the license against lawsuits in the same manner that the Apache 2.0 license protects those groups when works have copyright. - Be interoperable with Apache 2.0. Ideally, there would be no airgap between the ARL OSL and Apache 2.0, however because USG works don't have copyright, there will be some airgap. For works that have copyright, the Apache 2.0 license is preferable. If a project is licensed under the ARL OSL, it should be able to accept works that are licensed under the Apache 2.0 license, **and the contribution should be able to remain licensed under Apache 2.0**. This will mean that portions of the USG sponsored project will be relicensed under ARL OSL and other portions under Apache 2.0. I don't know if the ARL OSL meets those goals, if anyone sees a problem with this interpretation, please say so. - Protect Open Source. That is, the ARL OSL should meet the Open Source Definition at <https://opensource.org/osd> https://opensource.org/osd. If the ARL OSL doesn't meet these requirements, then it needs to be corrected. For those that don't know why we're pushing a new license/agreement, this is a quick recap of the problems (search through the mailing list archives to see more of what the problems are if you're interested). In most cases, the USG doesn't allow itself to have copyright on USG-produced works within the US. This means that if a license has clauses that depend on copyright for enforcement, then those clauses are likely unenforceable, at least for those portions of the code that were USG-produced. By itself, this probably wouldn't be a major problem; the truly serious issue is severability ( <https://en.wikipedia.org/wiki/Severability> https://en.wikipedia.org/wiki/Severability). The concern is that if the USG uses a license that depends on copyright (e.g., Apache 2.0), and those clauses are declared unenforceable by the courts, then it may be possible to declare the entire license unenforceable. If you read the Apache 2.0 license, you'll notice that the Apache Foundation did an (IMHO) excellent job of dealing with liability, warranty, and IP rights, protecting not only groups accepting contributions, but also all downstream users. Losing that protection could harm not only the USG, but also all downstream users as a flurry of litigation happens. This could cause a chilling effect on the USG, making upper management far less interested in participating in Open Source, or even permitting USG works to be released as Open Source. I personally don't want to see that happen. I want to ensure that Open Source remains Open Source, and that the gates to litigation Hell remain firmly closed. This is why I'm not willing to risk using copyright-based licenses on works that don't have copyright attached. If you believe that this isn't a concern, I respect your opinion, but I'd like to see case law, or better yet, Federal law that prevents this sort of problem from popping up. So far, neither I, nor the lawyers at ARL, nor the lawyers at the Justice department have been able to find any case law or laws explaining what would happen in such a case. If you know of such laws or case law, please let me know. For those that believe these concerns are invalid, I'd like to issue a challenge to you; would you be willing to enter into a binding contract with the USG indemnifying it and its agents against the problems outlined above? That is, if the USG uses a copyright-based license on works it produces that have no copyright attached, and that license is declared invalid because the works have no copyright attached, would you be willing to indemnify the USG[1]? If you aren't, then you may wish to reconsider your arguments against having another license/agreement put in place. [1] I do not have the authority to negotiate on behalf of the USG, and these are not negotiations. This is just a strawman argument to make everyone **really think** about the issues facing the USG, and why we're being so careful in what we're doing. Thanks, Cem Karan """ U.S. Army Research Laboratory Open Source License (ARL OSL) Version 0.4.1, August 2016 <http://no/URL/as/yet> http://no/URL/as/yet TERMS AND CONDITIONS FOR USE, REPRODUCTION, AND DISTRIBUTION 1. Definitions. "License" shall mean the terms and conditions for use, reproduction, and distribution as defined by Sections 1 through 10 of this document. "Licensor" shall mean the project originator or entity authorized by the project originator that is granting the License. "Legal Entity" shall mean the union of the acting entity and all other entities that control, are controlled by, or are under common control with that entity. For the purposes of this definition, "control" means (i) the power, direct or indirect, to cause the direction or management of such entity, whether by contract or otherwise, or (ii) ownership of fifty percent (50%) or more of the outstanding shares, or (iii) beneficial ownership of such entity. "You" (or "Your") shall mean an individual or Legal Entity exercising permissions granted by this License. "Source" form shall mean the preferred form for making modifications, including but not limited to software source code, documentation source, and configuration files. "Object" form shall mean any form resulting from mechanical transformation or translation of a Source form, including but not limited to compiled object code, generated documentation, and conversions to other media types. "Work" shall mean the work of authorship, whether in Source or Object form, made available under the License, as indicated by a notice that is included in or attached to the work (an example is provided in the Appendix below). "Derivative Works" shall mean any work, whether in Source or Object form, that is based on (or derived from) the Work and for which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work of authorship. For the purposes of this License, Derivative Works shall not include works that remain separable from, or merely link (or bind by name) to the interfaces of, the Work and Derivative Works thereof. "Contribution" shall mean any work of authorship, including the original version of the Work and any modifications or additions to that Work or Derivative Works thereof, that is intentionally submitted to Licensor for inclusion in the Work by the author or by an individual or Legal Entity authorized to submit on behalf of the author. For the purposes of this definition, "submitted" means any form of electronic, verbal, or written communication sent to the Licensor or its representatives, including but not limited to communication on electronic mailing lists, source code control systems, and issue tracking systems that are managed by, or on behalf of, the Licensor for the purpose of discussing and improving the Work, but excluding communication that is conspicuously marked or otherwise designated in writing by the author as "Not a Contribution." "Contributor" shall mean Licensor and any individual or Legal Entity on behalf of whom a Contribution has been received by Licensor and subsequently incorporated within the Work. 2. Grant of Copyright License. Subject to the terms and conditions of this License, where copyright exists, each Contributor hereby grants to You a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable copyright license to reproduce, prepare Derivative Works of, publicly display, publicly perform, sublicense, and distribute the Work and such Derivative Works in Source or Object form. 3. Grant of Patent License. Subject to the terms and conditions of this License, each Contributor hereby grants to You a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable (except as stated in this section) patent license to make, have made, use, offer to sell, sell, import, and otherwise transfer the Work, where such license applies only to those patent claims licensable by such Contributor that are necessarily infringed by their Contribution(s) alone or by combination of their Contribution(s) with the Work to which such Contribution(s) was submitted. If You institute patent litigation against any entity (including a cross-claim or counterclaim in a lawsuit) alleging that the Work or a Contribution incorporated within the Work constitutes direct or contributory patent infringement, then any patent licenses granted to You under this License for that Work shall terminate as of the date such litigation is filed. 4. Redistribution. You may reproduce and distribute copies of the Work or Derivative Works thereof in any medium, with or without modifications, and in Source or Object form, provided that You meet the following conditions: (a) You must give any other recipients of the Work or Derivative Works a copy of this License; and (b) You must cause any modified files to carry prominent notices stating that You changed the files; and (c) You must retain, in the Source form of any Derivative Works that You distribute, all copyright, patent, trademark, and attribution notices from the Source form of the Work, excluding those notices that do not pertain to any part of the Derivative Works; and (d) If the Work includes a "NOTICE" text file as part of its distribution, then any Derivative Works that You distribute must include a readable copy of the attribution notices contained within such NOTICE file, excluding those notices that do not pertain to any part of the Derivative Works, in at least one of the following places: within a NOTICE text file distributed as part of the Derivative Works; within the Source form or documentation, if provided along with the Derivative Works; or, within a display generated by the Derivative Works, if and wherever such third-party notices normally appear. The contents of the NOTICE file are for informational purposes only and do not modify the License. You may add Your own attribution notices within Derivative Works that You distribute, alongside or as an addendum to the NOTICE text from the Work, provided that such additional attribution notices cannot be construed as modifying the License. You may add Your own copyright statement to Your modifications and may provide additional or different license terms and conditions for use, reproduction, or distribution of Your modifications, or for any such Derivative Works as a whole, provided Your use, reproduction, and distribution of the Work otherwise complies with the conditions stated in this License. 5. Submission of Contributions. Unless You explicitly state otherwise, any Contribution intentionally submitted for inclusion in the Work by You to the Licensor shall be under the terms and conditions of this License, without any additional terms or conditions. Notwithstanding the above, nothing herein shall supersede or modify the terms of any separate license agreement you may have executed with Licensor regarding such Contributions. 6. Trademarks. This License does not grant permission to use the trade names, trademarks, service marks, or product names of the Licensor, except as required for reasonable and customary use in describing the origin of the Work and reproducing the content of the NOTICE file. 7. Disclaimer of Warranty. Unless required by applicable law or agreed to in writing, Licensor provides the Work (and each Contributor provides its Contributions) on an "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied, including, without limitation, any warranties or conditions of TITLE, NON-INFRINGEMENT, MERCHANTABILITY, or FITNESS FOR A PARTICULAR PURPOSE. You are solely responsible for determining the appropriateness of using or redistributing the Work and assume any risks associated with Your exercise of permissions under this License. 8. Limitation of Liability. In no event and under no legal theory, whether in tort (including negligence), contract, or otherwise, unless required by applicable law (such as deliberate and grossly negligent acts) or agreed to in writing, shall any Contributor be liable to You for damages, including any direct, indirect, special, incidental, or consequential damages of any character arising as a result of this License or out of the use or inability to use the Work (including but not limited to damages for loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses), even if such Contributor has been advised of the possibility of such damages. 9. Accepting Warranty or Additional Liability. While redistributing the Work or Derivative Works thereof, You may choose to offer, and charge a fee for, acceptance of support, warranty, indemnity, or other liability obligations and/or rights consistent with this License. However, in accepting such obligations, You may act only on Your own behalf and on Your sole responsibility, not on behalf of any other Contributor, and only if You agree to indemnify, defend, and hold each Contributor harmless for any liability incurred by, or claims asserted against, such Contributor by reason of your accepting any such warranty or additional liability. 10. All or part of this work is in the public domain and not subject to copyright. If any part of this work is deemed copyrightable, now or in the future, its Contributors agree that such copyrightable parts may be distributed under the terms of this License. END OF TERMS AND CONDITIONS APPENDIX: How to apply the U.S. Army Research Laboratory Open Source License (ARL OSL) to your work. To apply the ARL OSL to your work, attach the following boilerplate notice, with the fields enclosed by brackets "[]" replaced with your own identifying information. (Don't include the brackets!) The text should be enclosed in the appropriate comment syntax for the file format. We also recommend that a file or class name and description of purpose be included on the same "printed page" as the notice for easier identification within third-party archives. [yyyy] [name of Licensor] Licensed under the U.S. Army Research Laboratory Open Source License (ARL OSL), Version 0.4.1 (the "License"); you may not use this file except in compliance with the License. You may obtain a copy of the License at <http://no/URL/as/yet> http://no/URL/as/yet Unless required by applicable law or agreed to in writing, software distributed under the License is distributed on an "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied. See the License for the specific language governing permissions and limitations under the License. """
_______________________________________________ License-discuss mailing list License-discuss@opensource.org https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss