> -----Original Message----- > From: Richard Fontana [mailto:font...@sharpeleven.org] > Sent: Monday, August 28, 2017 11:39 AM > To: Karan, Cem F CIV USARMY RDECOM ARL (US) <cem.f.karan....@mail.mil> > Cc: license-discuss@opensource.org > Subject: [Non-DoD Source] Re: NOSA 2.0, Copyfraud and the US Government > > On Mon, Aug 28, 2017 at 02:18:10PM +0000, Karan, Cem F CIV USARMY RDECOM ARL > (US) wrote: > > Hi all, as you know I've been pushing the position that the US > > Government may have problems using copyright-based licenses on works > > that do not have copyright attached. One of the lawyers I've been > > working on this with has been kind enough to dig up the exact statutes > > and give some clearer legal reasoning on what the issues are. It > > basically boils down to two issues; first, there is question of > > severability > > (Caution-https://en.wikipedia.org/wiki/Severability) which I've > > touched on before, and the second has to do with copyfraud > > (Caution-https://en.wikipedia.org/wiki/Copyfraud). > > Copyfraud is defined within 17 U.S.C. 506, section (c) > > (Caution-https://www.gpo.gov/fdsys/pkg/USCODE-2010-title17/html/USCODE-2010-title17-chap5-sec506.htm). > > I've copied out the relevant language below; the commentary within the > > brackets is from ARL's lawyer: > > > > """ > > (c) Fraudulent Copyright Notice.- > > Any person who, with fraudulent intent, places on any article a notice > > of copyright or words of the same purport that such person knows to be > > false, or who, with fraudulent intent, publicly distributes or imports > > for public distribution any article bearing such notice or words that > > such person knows to be false, shall be fined not more than $2,500. > > [Note - Any software pushed out under Open Source would not have a > > notice of copyright affixed to the software. However, would software > > pushed out under an Open Source license that assumes the existence of > > copyright be considered tantamount to a notice of copyright and > > therefore an actionable fraud under this section? Don't know.] """ > > > > I know that there were questions at one time about the need for > > special licenses/agreements like NOSA 2.0, but this is one of those > > potential problems. Copyright-based licenses are great for works that > > have copyright attached, but they may be problematic for works that > > don't have copyright attached. > > As has been pointed out before, I think, in software (including but not > limited to open source) copyright notices are commonly juxtaposed > with material that is clearly or likely not subject to copyright. > > Anyway, the theoretical risk here could be eliminated in lots of ways, it > seems to me (even without getting into what would be required to > show 'fraudulent intent'). For example, the US government could include a > copyright and license notice like the following: > > The following material may not be subject to copyright in the United > States under 17 U.S.C. 105. To the extent it is subject to > copyright, it is released under the following open source license: [...] > > There's also the approach that is seen in > Caution-https://github.com/deptofdefense/code.mil/blob/master/Proposal/INTENT.md. > > > So, given that we had come up with the idea of using two licenses in > > projects > > (CC0 for portions of a work that don't have copyright, and an > > OSI-approved license for portions of a work that do have copyright > > attached), why should OSI care? The problem is that CC0 is still not > > OSI-approved (at least, it isn't on the list at > > Caution-https://opensource.org/licenses/alphabetical). That means > > that the Government could be putting out works that are in some kind > > of zombie-like state, half-Open Source, and half not. If OSI approved > > CC0 as being an Open Source license, or if NOSA 2.0 was approved, then the > > problems could be fixed. So, where are we in either case? > > As I've pointed out before, CC0 itself does not eliminate the problem your > colleagues say they are concerned about, because CC0 assumes > copyright ownership. If they sincerely think it's dangerous to use the MIT > license then they should be consistent and say it's dangerous to > use CC0 too. > > I think the use you are suggesting for use of CC0 is not actually how > CC0 is meant to be used. CC0 is designed for the case where copyright > ownership is likely or plausibly present but the owner wishes to get > as close as possible to waiving all of their rights. I think you are saying > you want CC0 to be used to ceremonially declare (possibly in some > cases incorrectly or misleadingly) that something that is not subject to > copyright ownership in the first place is indeed ... not subject to > copyright ownership in the first place -- which is not what > CC0 says. > > Richard
I see what you're saying, and I understand how it may appear ceremonial, but there is an added wrinkle of copyright in non-US jurisdictions. By using CC0 in this way, it solves the question and 'levels the playing field' for everyone, if that makes sense. However, I *DO* see the point you're making about how CC0 may not be useable in this way. I'll see what our lawyers say about this. Thanks, Cem Karan
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