Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Karan, Cem F CIV USARMY RDECOM ARL (US)]

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Tzeng, Nigel H.
> Sent: Monday, August 22, 2016 5:02 PM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. 
> Army Research Laboratory Open Source License (ARL OSL)
> 0.4.0
> 
> Caution-https://opensource.org/approval
> 
> Yep, you get to start this all over again. :)
> 
> A lot of folks do read both lists so it¹s probably not a huge deal. 

*WHEW!* :)

Thanks,
Cem Karan


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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Karan, Cem F CIV USARMY RDECOM ARL (US)]

OK, so it's the way I thought.  First, propose a license on this list for 
discussion, but the actual review takes place on the license-review mailing 
list.

Thanks,
Cem Karan

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Richard Fontana
> Sent: Monday, August 22, 2016 5:04 PM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. 
> Army Research Laboratory Open Source License (ARL OSL)
> 0.4.0
> 
> Yes, that is mistaken. This list plays no role in the OSI license approval 
> process, though it can be an appropriate place to discuss a license
> that has not been submitted for OSI approval.
> 
> Richard
> 
> 
> On Mon, Aug 22, 2016 at 08:45:41PM +, Karan, Cem F CIV USARMY RDECOM ARL 
> (US) wrote:
> > I'm aware of the other list, but my understanding was that it had to be 
> > submitted to this list for discussion first, and then submitted to
> license-review once there was some consensus; am I wrong about this?
> >
> > Thanks,
> > Cem Karan
> >
> > > -Original Message-
> > > From: License-discuss
> > > [Caution-mailto:license-discuss-boun...@opensource.org] On Behalf Of
> > > Richard Fontana
> > > Sent: Monday, August 22, 2016 2:53 PM
> > > To: license-discuss@opensource.org
> > > Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source]
> > > Re: U.S. Army Research Laboratory Open Source License (ARL OSL)
> > > 0.4.0
> > >
> > > 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'm not sure if you're already aware but for several years this
> > > mailing list has not been used for discussing licenses submitted for
> > > OSI approval -- that is done on the license-review mailing list. The 
> > > license review process is described at Caution- Caution-
> https://opensource.org/approval.
> > >
> > > I haven't followed this thread too closely but it is clear that the
> > > ARL OSL is very different from NOSA 2.0. The only way to see whether it 
> > > would merit OSI approval (if that's what you are seeking)
> would be to submit it for review.
> > >
> > > Richard
> > >
> > >
> > > On Mon, Aug 22, 2016 at 05:14:59PM +, Karan, Cem F CIV USARMY RDECOM 
> > > ARL (US) wrote:
> > > > OK, so assuming that the NOSA 2.0 license is dead in the water,
> > > > what about the ARL OSL?  Is it also, dead, and if so, why?  Leave
> > > > aside
> > > the license proliferation aspect, and focus on what needs to be changed 
> > > with the ARL OSL to make it acceptable.
> > > >
> > > > Thanks,
> > > > Cem Karan
> > > >
> > > > > -Original Message-
> > > > > From: License-discuss
> > > > > [Caution-Caution-mailto:license-discuss-boun...@opensource.org]
> > > > > On Behalf Of Richard Fontana
> > > > > Sent: Saturday, August 20, 2016 10:21 AM
> > > > > To: license-discuss@opensource.org
> > > > > Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD
> > > > > Source]
> > > > > Re: U.S. Army Research Laboratory Open Source License (ARL OSL)
> > > > > 0.4.0
> > > > >
> > > > > 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.
> > > > >
> > > > >
> > > > >
> > > > >
> > > > > 
> > > > >
> > > > > On Sat, Aug 20, 2016 at 02:24:53AM +, Tzeng, Nigel H. wrote:
> > > > > > My understanding then and now was that it had become clear to
> > > > > > them that Richard and Bruce was going to stall approval for a
> > > > > > long time/forever unless they took out the patent clause that
> > > > > > the open data folks wanted. So they withdrew because they were
> > > > > > never going to do that and

Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Richard Fontana]

Yes, that is mistaken. This list plays no role in the OSI license
approval process, though it can be an appropriate place to discuss a
license that has not been submitted for OSI approval.

Richard


On Mon, Aug 22, 2016 at 08:45:41PM +, Karan, Cem F CIV USARMY RDECOM ARL 
(US) wrote:
> I'm aware of the other list, but my understanding was that it had to be 
> submitted to this list for discussion first, and then submitted to 
> license-review once there was some consensus; am I wrong about this?
> 
> Thanks,
> Cem Karan
> 
> > -Original Message-
> > From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> > Behalf Of Richard Fontana
> > Sent: Monday, August 22, 2016 2:53 PM
> > To: license-discuss@opensource.org
> > Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: 
> > U.S. Army Research Laboratory Open Source License (ARL OSL)
> > 0.4.0
> > 
> > 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'm not sure if you're already aware but for several years this mailing 
> > list has not been used for discussing licenses submitted for OSI
> > approval -- that is done on the license-review mailing list. The license 
> > review process is described at Caution-
> > https://opensource.org/approval.
> > 
> > I haven't followed this thread too closely but it is clear that the ARL OSL 
> > is very different from NOSA 2.0. The only way to see whether it
> > would merit OSI approval (if that's what you are seeking) would be to 
> > submit it for review.
> > 
> > Richard
> > 
> > 
> > On Mon, Aug 22, 2016 at 05:14:59PM +, Karan, Cem F CIV USARMY RDECOM 
> > ARL (US) wrote:
> > > OK, so assuming that the NOSA 2.0 license is dead in the water, what 
> > > about the ARL OSL?  Is it also, dead, and if so, why?  Leave aside
> > the license proliferation aspect, and focus on what needs to be changed 
> > with the ARL OSL to make it acceptable.
> > >
> > > Thanks,
> > > Cem Karan
> > >
> > > > -----Original Message-
> > > > From: License-discuss
> > > > [Caution-mailto:license-discuss-boun...@opensource.org] On Behalf Of
> > > > Richard Fontana
> > > > Sent: Saturday, August 20, 2016 10:21 AM
> > > > To: license-discuss@opensource.org
> > > > Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source]
> > > > Re: U.S. Army Research Laboratory Open Source License (ARL OSL)
> > > > 0.4.0
> > > >
> > > > 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.
> > > >
> > > >
> > > >
> > > >
> > > > 
> > > >
> > > > On Sat, Aug 20, 2016 at 02:24:53AM +, Tzeng, Nigel H. wrote:
> > > > > My understanding then and now was that it had become clear to them
> > > > > that Richard and Bruce was going to stall approval for a long
> > > > > time/forever unless they took out the patent clause that the open
> > > > > data folks wanted. So they withdrew because they were never going
> > > > > to do that and the discussions were getting more and more heated.
> > > >
> > > > I'm assuming 'Richard' is me and 'Bruce' is Bruce Perens. Neither of
> > > > us were on the OSI board at that time; we were just participants on
> > > > a mailing list. Also, I don't recall Bruce Perens' involvement in
> > > > the
> > > > CC0 discussion at all, but my objective was to encourage the OSI
> > > > take a consistent approach to the problem of nonstandard provisions
> > > > dealing with patents, having remembered the discussion of the MXM 
> > > > license in ~2009, rather than an approach that would be
> > explainable solely by attitudes towards the license steward.
> > > >
> > > > > If you don¹t believe that was a correct assessment on their part
> > > > > then pray tell the status of NOSA v2 that was originally submitted
> > > > > for approval in 2013.
> > > >
> > &

Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Tzeng, Nigel H.]

https://opensource.org/approval

Yep, you get to start this all over again. :)

A lot of folks do read both lists so it¹s probably not a huge deal.



On 8/22/16, 4:45 PM, "License-discuss on behalf of Karan, Cem F CIV USARMY
RDECOM ARL (US)"  wrote:

>I'm aware of the other list, but my understanding was that it had to be
>submitted to this list for discussion first, and then submitted to
>license-review once there was some consensus; am I wrong about this?
>
>Thanks,
>Cem Karan

___
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License-discuss@opensource.org
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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Karan, Cem F CIV USARMY RDECOM ARL (US)]

I'm aware of the other list, but my understanding was that it had to be 
submitted to this list for discussion first, and then submitted to 
license-review once there was some consensus; am I wrong about this?

Thanks,
Cem Karan

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Richard Fontana
> Sent: Monday, August 22, 2016 2:53 PM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. 
> Army Research Laboratory Open Source License (ARL OSL)
> 0.4.0
> 
> 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'm not sure if you're already aware but for several years this mailing list 
> has not been used for discussing licenses submitted for OSI
> approval -- that is done on the license-review mailing list. The license 
> review process is described at Caution-
> https://opensource.org/approval.
> 
> I haven't followed this thread too closely but it is clear that the ARL OSL 
> is very different from NOSA 2.0. The only way to see whether it
> would merit OSI approval (if that's what you are seeking) would be to submit 
> it for review.
> 
> Richard
> 
> 
> On Mon, Aug 22, 2016 at 05:14:59PM +, Karan, Cem F CIV USARMY RDECOM ARL 
> (US) wrote:
> > OK, so assuming that the NOSA 2.0 license is dead in the water, what about 
> > the ARL OSL?  Is it also, dead, and if so, why?  Leave aside
> the license proliferation aspect, and focus on what needs to be changed with 
> the ARL OSL to make it acceptable.
> >
> > Thanks,
> > Cem Karan
> >
> > > -Original Message-
> > > From: License-discuss
> > > [Caution-mailto:license-discuss-boun...@opensource.org] On Behalf Of
> > > Richard Fontana
> > > Sent: Saturday, August 20, 2016 10:21 AM
> > > To: license-discuss@opensource.org
> > > Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source]
> > > Re: U.S. Army Research Laboratory Open Source License (ARL OSL)
> > > 0.4.0
> > >
> > > 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.
> > >
> > >
> > >
> > >
> > > 
> > >
> > > On Sat, Aug 20, 2016 at 02:24:53AM +, Tzeng, Nigel H. wrote:
> > > > My understanding then and now was that it had become clear to them
> > > > that Richard and Bruce was going to stall approval for a long
> > > > time/forever unless they took out the patent clause that the open
> > > > data folks wanted. So they withdrew because they were never going
> > > > to do that and the discussions were getting more and more heated.
> > >
> > > I'm assuming 'Richard' is me and 'Bruce' is Bruce Perens. Neither of
> > > us were on the OSI board at that time; we were just participants on
> > > a mailing list. Also, I don't recall Bruce Perens' involvement in
> > > the
> > > CC0 discussion at all, but my objective was to encourage the OSI
> > > take a consistent approach to the problem of nonstandard provisions
> > > dealing with patents, having remembered the discussion of the MXM license 
> > > in ~2009, rather than an approach that would be
> explainable solely by attitudes towards the license steward.
> > >
> > > > If you don¹t believe that was a correct assessment on their part
> > > > then pray tell the status of NOSA v2 that was originally submitted
> > > > for approval in 2013.
> > >
> > > That's a special, unfortunate case. With NOSA 2.0 I continued (and
> > > sort of continue) to feel that the license was salvageable with a lot of 
> > > work, which no one (including me and I think including NASA)
> seems to have the time or inclination to take on individually or collectively.
> > > Possibly, in retrospect, the better approach with NOSA
> > > 2.0 would have been to outright reject it as being way too complex
> > > with a number of likely or actual fatal problems. An issue there was
> > > that, until recently, I assumed that the OSI customarily does not
> > > formally reject licenses, as opposed to just not approving those
> > > that are problematic

Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Richard Fontana]

I'm not sure if you're already aware but for several years this
mailing list has not been used for discussing licenses submitted for
OSI approval -- that is done on the license-review mailing list. The
license review process is described at https://opensource.org/approval.

I haven't followed this thread too closely but it is clear that the
ARL OSL is very different from NOSA 2.0. The only way to see whether
it would merit OSI approval (if that's what you are seeking) would be
to submit it for review.

Richard


On Mon, Aug 22, 2016 at 05:14:59PM +, Karan, Cem F CIV USARMY RDECOM ARL 
(US) wrote:
> OK, so assuming that the NOSA 2.0 license is dead in the water, what about 
> the ARL OSL?  Is it also, dead, and if so, why?  Leave aside the license 
> proliferation aspect, and focus on what needs to be changed with the ARL OSL 
> to make it acceptable.
> 
> Thanks,
> Cem Karan
> 
> > -Original Message-
> > From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> > Behalf Of Richard Fontana
> > Sent: Saturday, August 20, 2016 10:21 AM
> > To: license-discuss@opensource.org
> > Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: 
> > U.S. Army Research Laboratory Open Source License (ARL OSL)
> > 0.4.0
> > 
> > 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.
> > 
> > 
> > 
> > 
> > 
> > 
> > On Sat, Aug 20, 2016 at 02:24:53AM +, Tzeng, Nigel H. wrote:
> > > My understanding then and now was that it had become clear to them
> > > that Richard and Bruce was going to stall approval for a long
> > > time/forever unless they took out the patent clause that the open data
> > > folks wanted. So they withdrew because they were never going to do
> > > that and the discussions were getting more and more heated.
> > 
> > I'm assuming 'Richard' is me and 'Bruce' is Bruce Perens. Neither of us 
> > were on the OSI board at that time; we were just participants on a
> > mailing list. Also, I don't recall Bruce Perens' involvement in the
> > CC0 discussion at all, but my objective was to encourage the OSI take a 
> > consistent approach to the problem of nonstandard provisions
> > dealing with patents, having remembered the discussion of the MXM license 
> > in ~2009, rather than an approach that would be explainable
> > solely by attitudes towards the license steward.
> > 
> > > If you don¹t believe that was a correct assessment on their part then
> > > pray tell the status of NOSA v2 that was originally submitted for
> > > approval in 2013.
> > 
> > That's a special, unfortunate case. With NOSA 2.0 I continued (and sort of 
> > continue) to feel that the license was salvageable with a lot of
> > work, which no one (including me and I think including NASA) seems to have 
> > the time or inclination to take on individually or collectively.
> > Possibly, in retrospect, the better approach with NOSA
> > 2.0 would have been to outright reject it as being way too complex with a 
> > number of likely or actual fatal problems. An issue there was
> > that, until recently, I assumed that the OSI customarily does not formally 
> > reject licenses, as opposed to just not approving those that are
> > problematic (holding out the possibility of the license steward submitting 
> > revisions or improvements). I think that is actually true of
> > licenses submitted in the past several years, but I recently learned that 
> > in the distant past there were licenses the OSI actually formally
> > rejected.
> > 
> > Even now, I still think NOSA 2.0 can be fixed without revising it beyond 
> > all recognition. However, I pointed out at least one significant
> > problem (related, in fact, to the MXM/CC0 patent provisions issue) and it 
> > did not seem that Bryan was receptive to discussing it. Even if
> > the OSI did have at least an earlier history of rejecting licenses, I 
> > believe it's true that revised versions of problematic submitted licenses
> > have generally been prepared by the license steward rather than that task 
> > being taken on by the OSI itself. That is, it would be strange if
> > the only way to get an acceptable version of NOSA 2.0 would be for the OSI 
> > to take on primary responsibility for drafting it.
> > 
> > Richard
> > ___
> > License-discuss mailing list
>

Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Karan, Cem F CIV USARMY RDECOM ARL (US)]

OK, so assuming that the NOSA 2.0 license is dead in the water, what about the 
ARL OSL?  Is it also, dead, and if so, why?  Leave aside the license 
proliferation aspect, and focus on what needs to be changed with the ARL OSL to 
make it acceptable.

Thanks,
Cem Karan

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Richard Fontana
> Sent: Saturday, August 20, 2016 10:21 AM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. 
> Army Research Laboratory Open Source License (ARL OSL)
> 0.4.0
> 
> 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.
> 
> 
> 
> 
> 
> 
> On Sat, Aug 20, 2016 at 02:24:53AM +, Tzeng, Nigel H. wrote:
> > My understanding then and now was that it had become clear to them
> > that Richard and Bruce was going to stall approval for a long
> > time/forever unless they took out the patent clause that the open data
> > folks wanted. So they withdrew because they were never going to do
> > that and the discussions were getting more and more heated.
> 
> I'm assuming 'Richard' is me and 'Bruce' is Bruce Perens. Neither of us were 
> on the OSI board at that time; we were just participants on a
> mailing list. Also, I don't recall Bruce Perens' involvement in the
> CC0 discussion at all, but my objective was to encourage the OSI take a 
> consistent approach to the problem of nonstandard provisions
> dealing with patents, having remembered the discussion of the MXM license in 
> ~2009, rather than an approach that would be explainable
> solely by attitudes towards the license steward.
> 
> > If you don¹t believe that was a correct assessment on their part then
> > pray tell the status of NOSA v2 that was originally submitted for
> > approval in 2013.
> 
> That's a special, unfortunate case. With NOSA 2.0 I continued (and sort of 
> continue) to feel that the license was salvageable with a lot of
> work, which no one (including me and I think including NASA) seems to have 
> the time or inclination to take on individually or collectively.
> Possibly, in retrospect, the better approach with NOSA
> 2.0 would have been to outright reject it as being way too complex with a 
> number of likely or actual fatal problems. An issue there was
> that, until recently, I assumed that the OSI customarily does not formally 
> reject licenses, as opposed to just not approving those that are
> problematic (holding out the possibility of the license steward submitting 
> revisions or improvements). I think that is actually true of
> licenses submitted in the past several years, but I recently learned that in 
> the distant past there were licenses the OSI actually formally
> rejected.
> 
> Even now, I still think NOSA 2.0 can be fixed without revising it beyond all 
> recognition. However, I pointed out at least one significant
> problem (related, in fact, to the MXM/CC0 patent provisions issue) and it did 
> not seem that Bryan was receptive to discussing it. Even if
> the OSI did have at least an earlier history of rejecting licenses, I believe 
> it's true that revised versions of problematic submitted licenses
> have generally been prepared by the license steward rather than that task 
> being taken on by the OSI itself. That is, it would be strange if
> the only way to get an acceptable version of NOSA 2.0 would be for the OSI to 
> take on primary responsibility for drafting it.
> 
> Richard
> ___
> License-discuss mailing list
> License-discuss@opensource.org
> Caution-https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss
 U.S. Army Research Laboratory Open Source License (ARL OSL)
   Version 0.4.1, August 2016
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 man

Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Richard Fontana]

On Sat, Aug 20, 2016 at 02:24:53AM +, Tzeng, Nigel H. wrote:
> My understanding then and now was that it had become clear to them that
> Richard and Bruce was going to stall approval for a long time/forever
> unless they took out the patent clause that the open data folks wanted. So
> they withdrew because they were never going to do that and the discussions
> were getting more and more heated.

I'm assuming 'Richard' is me and 'Bruce' is Bruce Perens. Neither of
us were on the OSI board at that time; we were just participants on a
mailing list. Also, I don't recall Bruce Perens' involvement in the
CC0 discussion at all, but my objective was to encourage the OSI take
a consistent approach to the problem of nonstandard provisions dealing
with patents, having remembered the discussion of the MXM license in
~2009, rather than an approach that would be explainable solely by
attitudes towards the license steward.

> If you don¹t believe that was a correct assessment on their part then pray
> tell the status of NOSA v2 that was originally submitted for approval in
> 2013.

That's a special, unfortunate case. With NOSA 2.0 I continued (and
sort of continue) to feel that the license was salvageable with a lot
of work, which no one (including me and I think including NASA) seems
to have the time or inclination to take on individually or
collectively. Possibly, in retrospect, the better approach with NOSA
2.0 would have been to outright reject it as being way too complex
with a number of likely or actual fatal problems. An issue there was
that, until recently, I assumed that the OSI customarily does not
formally reject licenses, as opposed to just not approving those that
are problematic (holding out the possibility of the license steward
submitting revisions or improvements). I think that is actually true
of licenses submitted in the past several years, but I recently
learned that in the distant past there were licenses the OSI actually
formally rejected.

Even now, I still think NOSA 2.0 can be fixed without revising it
beyond all recognition. However, I pointed out at least one
significant problem (related, in fact, to the MXM/CC0 patent
provisions issue) and it did not seem that Bryan was receptive to
discussing it. Even if the OSI did have at least an earlier history of
rejecting licenses, I believe it's true that revised versions of
problematic submitted licenses have generally been prepared by the
license steward rather than that task being taken on by the OSI
itself. That is, it would be strange if the only way to get an
acceptable version of NOSA 2.0 would be for the OSI to take on primary
responsibility for drafting it.

Richard
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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Rick Moen]

Quoting Tzeng, Nigel H. (nigel.tz...@jhuapl.edu):

> He said that CC would consider when they had more timeŠback in 2012Šso I
> guess either Creative Commons has been insanely busy the last four years
> or that was a very polite way of saying ³yah whatever, the FSF already
> recommends CC0 even WITH the patent statement. You came to us, not us to
> you².

Or they're _so_ short-staffed that the organisation was actually
almost completely de-funded some time in 2014, closing its
Mountain View office thus leaving it with a grand total of zero offices,
and in some considerable disarray.

> My understanding then and now was that it had become clear to them that
> Richard and Bruce was going to stall approval for a long time/forever
> unless they took out the patent clause that the open data folks wanted. So
> they withdrew because they were never going to do that and the discussions
> were getting more and more heated.

I was part of the (public) discussions, and it is just not correct to
assert that they were getting more and more heated.  (For the record, I
stated consistently, starting immediately upon its submission, that CC0
was manifestly open source on account of its fallback permissive
licence.)

You'll pardon me if I don't simply take your word on what you allege
about behind-the-scenes plotting.  I know only that what has been stated
upthread is a misrepresentation of the 2012 discussion, which I remember
quite well (and is also archived for the curious).

Nor am I going to get derailed onto irrelevancies.  Speaking of looking
silly.

> If you don¹t consider it was damaging then consider this: the White House
> has told government agencies that "Thou Shall Open Source 20% of Your
> Software Portfolio² and their first example was their own code.gov site
> released under CC0*.

Well, it _is_ open source.

Endless variant forms of permissive licences are.

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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Tzeng, Nigel H.]

On 8/19/16, 6:55 PM, "License-discuss on behalf of Rick Moen"

wrote:


>Speaking for Creative Commons, Christopher Allan Webber appears to have
>correctly understood this feedback to be _not_ at all a rejection of the
>licence but rather suggestions for its revision, which he said (in his
>note on Feb. 24, 2012 withdrawing the application) CC would consider
>when the organisation has time.  _He_ understood this, even though some
>people on this mailing list today appear not to have.

He said that CC would consider when they had more timeŠback in 2012Šso I
guess either Creative Commons has been insanely busy the last four years
or that was a very polite way of saying ³yah whatever, the FSF already
recommends CC0 even WITH the patent statement. You came to us, not us to
you².

Christopher was exceedingly polite during that discussion and CC has also
been publicly polite in general to the OSI.

My understanding then and now was that it had become clear to them that
Richard and Bruce was going to stall approval for a long time/forever
unless they took out the patent clause that the open data folks wanted. So
they withdrew because they were never going to do that and the discussions
were getting more and more heated.  The situation was immensely silly and
damaging to the OSI.

If you don¹t believe that was a correct assessment on their part then pray
tell the status of NOSA v2 that was originally submitted for approval in
2013.

If you don¹t consider it was damaging then consider this: the White House
has told government agencies that "Thou Shall Open Source 20% of Your
Software Portfolio² and their first example was their own code.gov site
released under CC0*.

So the idea that ³it¹s not really open source unless OSI approved² took a
major hit because either the folks promoting Open Source at the highest
level of government don¹t know who the OSI is or they simply don¹t care.

* After going back and looking the eRegulations project from the CFPB that
was cited as an example in the Federal Source Code Policy Memorandum is
also CC0.

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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Rick Moen]

Quoting Richard Fontana (font...@opensource.org):

> On Thu, Aug 18, 2016 at 08:55:54PM +, Tzeng, Nigel H. wrote:
> > If the USG is using CC0 for their new OSS initiative
> > is this something that should be revisited?
> 
> Yes, I think so. 
> 
> > Of course, you know I¹m of the opinion that is the OSI states a
> > license is open source if it passes the OSD then we should either
> > amend the OSD to require explicit patent grants moving forward or
> > not block useful new licenses because of the lack of a patent grant.
> 
> I'm inclined to agree with that. Note, though, the controversial issue
> with CC0 was the explicit refusal to grant a patent license.

More specifically, CCO's explicit claim that no patent rights shall be
conveyed though means of the CC0 grant.  It wasn't just a 'refusal to
grant', which would have been fairly ordinary among open source
licences.

For clarification, nobody at OSI claimed the problematic clause would
block moving forward.  Several members of license-review (including, I'm
pretty sure, you) merely asked Karl Fogel to consult with Creative
Commons to see if they might consider removing that clause, and
substituting one granting use of patent claims the licensor holds that
are necessary to use the software in the form it was licensed or
dedicated.  (There were also other comments, which I've not reviewed
today.)

Speaking for Creative Commons, Christopher Allan Webber appears to have
correctly understood this feedback to be _not_ at all a rejection of the
licence but rather suggestions for its revision, which he said (in his
note on Feb. 24, 2012 withdrawing the application) CC would consider
when the organisation has time.  _He_ understood this, even though some
people on this mailing list today appear not to have.

-- 
Cheers, Grossman's Law:  "In time of crisis, people do not rise to
Rick Moen   the occasion.  They fall to the level of their training."
r...@linuxmafia.com  http://linuxmafia.com/~rick/lexicon.html#grossman
McQ! (4x80)
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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Richard Fontana]

On Thu, Aug 18, 2016 at 08:55:54PM +, Tzeng, Nigel H. wrote:
> If the USG is using CC0 for their new OSS initiative
> is this something that should be revisited?

Yes, I think so. 

> Of course, you know I¹m of the opinion that is the OSI states a license is
> open source if it passes the OSD then we should either amend the OSD to
> require explicit patent grants moving forward or not block useful new
> licenses because of the lack of a patent grant.

I'm inclined to agree with that. Note, though, the controversial issue
with CC0 was the explicit refusal to grant a patent license. I don't
think a license with a similar feature has been submitted for OSI
approval since the CC0 event. The OSI has approved at least one
license since that time that did not explicitly address patents.

Richard

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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Scott K Peterson]

> Ugh. I’m perfectly happy to give away my own code and patents when
> I choose to do so but I would be very unhappy if I accidentally gave
> away someone else’s work and cost them thousands of dollars of lost
> royalties.

This is a well-know problem with no solution for which all parties are happy in 
all cases. In addition to contributions to FOSS, this arises in connection with 
development of standards (the domain of the Rambus case, which I believe was 
mentioned earlier in this thread).

In order to appreciate why there is no general solution, it is useful to try 
sitting on each of the opposing sides of the issue: the contributor and a 
consumer of the contribution.

As pointed out, the contributor is troubled by the potential of impacting 
patents from a distant part of some larger world of which the contributor is a 
part. This can occur in companies of even modest size (see the IPO list below) 
and the challenge increases with the diversity of a company's overall business 
- in the extreme, consider a large diversified conglomerate. From the consumer 
perspective consider the following: A company X invests in use of software to 
which research lab Y contributed, only to later have a patent that covers that 
contribution asserted against it by the entity that owns lab Y. How OK is that? 
Perhaps different people will have different answers depending on the details.

The likelihood such a patent situation actually arising is probably quite 
small. But, how does that cut? Should the contributor or the consumer take 
comfort in that speculative low probability?

The IPO publishes annual lists of the assignees are large numbers of new US 
patents:
http://www.ipo.org/wp-content/uploads/2016/06/2015-Top-300-Patent-Owners.pdf

I see the Navy at 104, the Army at 201, DHHS at 214.

-- Scott



- Original Message - 
From: "Nigel H. Tzeng" <nigel.tz...@jhuapl.edu> 
To: "Lawrence Rosen" <lro...@rosenlaw.com>, license-discuss@opensource.org 
Sent: Friday, August 19, 2016 4:02:35 PM 
Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. 
Army Research Laboratory Open Source License (ARL OSL) 0.4.0 

From: License-discuss < license-discuss-boun...@opensource.org > on behalf of " 
lro...@rosenlaw.com " < lro...@rosenlaw.com > 

>There are other important reasons besides "aging out" why the claims of 
>copyright on parts of functional works like software are often denied. (See 17 
>U.S.C. 102(b), for example.) Aging out isn't the only obstacle to copyright 
>claims >that make the copyright aspects of FOSS licenses unenforceable while 
>they remain contracts to disclaim warranties. So when several here suggested 
>that ALL FOSS WORKS probably contain public domain content, this is ANOTHER 
>>example not involving aging. 

>The USG and ARL are not unique. Public domain is what it is for software works 
>for everyone here (and probably abroad too). A unique FOSS license isn't 
>necessary to "protect copyrights" in public domain works. Almost any FOSS 
>>contract will work to protect the licensor. 
The point is that the code fond in other FOSS WORKS that are in the public 
domain is generally not significant enough to contain an implantation of a 
software patent. This is why your shakespeare example isn’t valid and why the 
USG and ARL could be unique. Software in the public domain have neither an 
implicit or explicit patent grant. Which should be a concern of ARL. 

OSS licenses that do not explicitly handle the public domain case does not 
apparently meet the needs of the ARL (and probably the rest of the USG) because 
there may be a issue when no copyright exists. 

That said, it occurs to me that ARL would not want to use an Apache style 
patent grant but a ECL v2 style grant. Otherwise someone at the DOE could 
release source code that implements a patent owned by ARL that they are 
licensing to industry for royalties. Or vice versa. 




Under 15 US Code § 3710c a.1.A.i 

The head of the agency or laboratory, or such individual’s designee, shall pay 
each year the first $2,000, and thereafter at least 15 percent, of the 
royalties or other payments, other than payments of patent costs as delineated 
by a license or assignment agreement, to the inventor or coinventors, if the 
inventor’s or coinventor’s rights are assigned to the United States. 




According to this site: 
http://www.tms.org/pubs/journals/JOM/matters/matters-9004.html 




It is estimated that the government has title to over 30,000 patents and 
annually files several thousand new applications. 




Ugh. I’m perfectly happy to give away my own code and patents when I choose to 
do so but I would be very unhappy if I accidentally gave away someone else’s 
work and cost them thousands of dollars of lost royalties. 

My assumption is that the USG is treated as a single legal en

Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Tzeng, Nigel H.]

From: License-discuss 
>
 on behalf of "lro...@rosenlaw.com" 
>


>There are other important reasons besides "aging out" why the claims of 
>copyright on parts of functional works like software are often denied. (See 17 
>U.S.C. 102(b), for example.) Aging out isn't the only obstacle to copyright 
>claims >that make the copyright aspects of FOSS licenses unenforceable while 
>they remain contracts to disclaim warranties. So when several here suggested 
>that ALL FOSS WORKS probably contain public domain content, this is ANOTHER 
>>example not involving aging.



>The USG and ARL are not unique. Public domain is what it is for software works 
>for everyone here (and probably abroad too). A unique FOSS license isn't 
>necessary to "protect copyrights" in public domain works. Almost any FOSS 
>>contract will work to protect the licensor.



The point is that the code fond in other FOSS WORKS that are in the public 
domain is generally not significant enough to contain an implantation of a 
software patent.  This is why your shakespeare example isn't valid and why the 
USG and ARL could be unique.  Software in the public domain have neither an 
implicit or explicit patent grant.  Which should be a concern of ARL.

OSS licenses that do not explicitly handle the public domain case does not 
apparently meet the needs of the ARL (and probably the rest of the USG) because 
there may be a issue when no copyright exists.

That said, it occurs to me that ARL would not want to use an Apache style 
patent grant but a ECL v2 style grant.  Otherwise someone at the DOE could 
release source code that implements a patent owned by ARL that they are 
licensing to industry for royalties.  Or vice versa.

Under 15 US Code § 3710c a.1.A.i

The head of the agency or laboratory, or such individual's designee, shall pay 
each year the first $2,000, and thereafter at least 15 percent, of the 
royalties or other payments, other than payments of patent costs as delineated 
by a license or assignment agreement, to the inventor or coinventors, if the 
inventor's or coinventor's rights are assigned to the United States.

According to this site:  
http://www.tms.org/pubs/journals/JOM/matters/matters-9004.html

 It is estimated that the government has title to over 30,000 patents and 
annually files several thousand new applications.

Ugh. I'm perfectly happy to give away my own code and patents when I choose to 
do so but I would be very unhappy if I accidentally gave away someone else's 
work and cost them thousands of dollars of lost royalties.

My assumption is that the USG is treated as a single legal entity for patent 
and copyright purposes which may be incorrect.  Even if not, one would assume 
that ARL would be treated as part of the Army and could impact any other Army 
lab, FFRDC, UARC or university and other organizations conducting research for 
the Army.
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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Karan, Cem F CIV USARMY RDECOM ARL (US)]

Exactly.  Anyone that gets something from the USG deserves to know that they 
won't be facing a patent lawsuit from any of the contributors.

Thanks,
Cem Karan

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Chris DiBona
> Sent: Thursday, August 18, 2016 6:12 PM
> To: license-discuss@opensource.org
> Cc: Lawrence Rosen <lro...@rosenlaw.com>
> Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. 
> Army Research Laboratory Open Source License (ARL OSL)
> 0.4.0
> 
> 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.
> 
> 
> 
> 
> 
> 
> 
> In military contracting , patent grants are key to the point where I wouldn't 
> consider a non patent granting license from, say, lockheed as
> being open source at all.
> 
> 
> On Aug 18, 2016 3:05 PM, "Tzeng, Nigel H." <nigel.tz...@jhuapl.edu < 
> Caution-mailto:nigel.tz...@jhuapl.edu > > wrote:
> 
> 
>   On 8/18/16, 3:57 PM, "License-discuss on behalf of Lawrence Rosen"
>   <license-discuss-boun...@opensource.org < 
> Caution-mailto:license-discuss-boun...@opensource.org >  on behalf of
> lro...@rosenlaw.com < Caution-mailto:lro...@rosenlaw.com > >
>   wrote:
> 
> 
>   >Nigel Tzeng wrote:
>   >> The issue here is for code that is potentially quite substantial.  I
>   >>would think that would be a different scenario.
>   >
>   >If I include the works of Shakespeare in my software, it would of 
> course
>   >be substantial and yet still be public domain almost everywhere (?).
> 
>   If patents aren't a concern then okay.  Copyright lasts longer than
>   patents so for anything that is in the public domain because of age then
>   no patents would still apply.
> 
>   There isn¹t a lot of code that has aged out.  Only code written between
>   before 1963 and didn¹t get a renewal.
> 
>   ___
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> < Caution-https://lists.opensource.org/cgi-
> bin/mailman/listinfo/license-discuss >
> 



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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Lawrence Rosen]

Nigel Tzeng correctly noted about U.S. public domain code:

> There isn¹t a lot of code that has aged out.  Only code written between 
> before 1963 and didn¹t get a renewal.

 

There are other important reasons besides "aging out" why the claims of 
copyright on parts of functional works like software are often denied. (See 17 
U.S.C. 102(b), for example.) Aging out isn't the only obstacle to copyright 
claims that make the copyright aspects of FOSS licenses unenforceable while 
they remain contracts to disclaim warranties. So when several here suggested 
that ALL FOSS WORKS probably contain public domain content, this is ANOTHER 
example not involving aging. 

 

The USG and ARL are not unique. Public domain is what it is for software works 
for everyone here (and probably abroad too). A unique FOSS license isn't 
necessary to "protect copyrights" in public domain works. Almost any FOSS 
contract will work to protect the licensor. 

 

/Larry

 

 

 

-Original Message-
From: Tzeng, Nigel H. [mailto:nigel.tz...@jhuapl.edu] 
Sent: Thursday, August 18, 2016 2:59 PM
To: Lawrence Rosen <lro...@rosenlaw.com>; license-discuss@opensource.org
Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. 
Army Research Laboratory Open Source License (ARL OSL) 0.4.0

 

On 8/18/16, 3:57 PM, "License-discuss on behalf of Lawrence Rosen"

< 
<mailto:license-discuss-boun...@opensource.org%20on%20behalf%20of%20lro...@rosenlaw.com>
 license-discuss-boun...@opensource.org on behalf of lro...@rosenlaw.com>

wrote:

 

 

>Nigel Tzeng wrote:

>> The issue here is for code that is potentially quite substantial.  I 

>>would think that would be a different scenario.

> 

>If I include the works of Shakespeare in my software, it would of 

>course be substantial and yet still be public domain almost everywhere (?).

 

If patents aren't a concern then okay.  Copyright lasts longer than patents so 
for anything that is in the public domain because of age then no patents would 
still apply.

 

There isn¹t a lot of code that has aged out.  Only code written between before 
1963 and didn¹t get a renewal.

 

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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Karan, Cem F CIV USARMY RDECOM ARL (US)]

We apply for and are granted patents on a regular basis at ARL.  In fact, part 
of how scientists and engineers are evaluated on their performance can include 
the number of patents they get, all of which are owned by the USG.

Thanks,
Cem Karan

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Brian Behlendorf
> Sent: Thursday, August 18, 2016 8:46 PM
> To: ch...@dibona.com; license-discuss@opensource.org
> Cc: Lawrence Rosen <lro...@rosenlaw.com>
> Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. 
> Army Research Laboratory Open Source License (ARL OSL)
> 0.4.0
> 
> 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.
> 
> 
> 
> 
> 
> 
> 
> Totally agree.  But can the USG file patents?  I suppose research 
> organizations can (MITRE, maybe even NASA?) so it's not that academic;
> but presumably any place where this public domain arises, it applies to 
> patents too.  Would be nice to get that sorted.
> 
> Brian
> 
> On Thu, 18 Aug 2016, Chris DiBona wrote:
> > In military contracting , patent grants are key to the point where I 
> > wouldn't consider a non patent granting license from, say, lockheed as
> being open source at all.
> >
> >
> > On Aug 18, 2016 3:05 PM, "Tzeng, Nigel H." <nigel.tz...@jhuapl.edu> wrote:
> >   On 8/18/16, 3:57 PM, "License-discuss on behalf of Lawrence Rosen"
> >   <license-discuss-boun...@opensource.org on behalf of 
> > lro...@rosenlaw.com>
> >   wrote:
> >
> >
> >   >Nigel Tzeng wrote:
> >   >> The issue here is for code that is potentially quite substantial.  
> > I
> >   >>would think that would be a different scenario.
> >   >
> >   >If I include the works of Shakespeare in my software, it would of 
> > course
> >   >be substantial and yet still be public domain almost everywhere (?).
> >
> >   If patents aren't a concern then okay.  Copyright lasts longer than
> >   patents so for anything that is in the public domain because of age 
> > then
> >   no patents would still apply.
> >
> >   There isn¹t a lot of code that has aged out.  Only code written 
> > between
> >   before 1963 and didn¹t get a renewal.
> >
> >   ___
> >   License-discuss mailing list
> >   License-discuss@opensource.org
> >
> > Caution-https://lists.opensource.org/cgi-bin/mailman/listinfo/license-
> > discuss
> >
> >
> >


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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Smith, McCoy]

USG patents aren't public domain, and USG can and does license them for 
royalties.
I believe there are a handful of examples of USG filing infringement suits as 
well.

> On Aug 18, 2016, at 8:26 PM, Brian Behlendorf  wrote:
> 
> 
> Do those follow the same rules as copyright?  E.g., when done by a USG 
> employee, it's public domain in the US?
> 
> Seems like those should get covered by whatever folks come up with.
> 
> Brian
> 
>> On Fri, 19 Aug 2016, Smith, McCoy wrote:
>> Yes
>> USG files patents all the time
>> 
>>> On Aug 18, 2016, at 5:51 PM, Brian Behlendorf  wrote:
>>> 
>>> 
>>> Totally agree.  But can the USG file patents?  I suppose research 
>>> organizations can (MITRE, maybe even NASA?) so it's not that academic; but 
>>> presumably any place where this public domain arises, it applies to patents 
>>> too.  Would be nice to get that sorted.
>>> 
>>> Brian
>>> 
 On Thu, 18 Aug 2016, Chris DiBona wrote:
 In military contracting , patent grants are key to the point where I 
 wouldn't consider a non patent granting license from, say, lockheed as 
 being open source at all.
 On Aug 18, 2016 3:05 PM, "Tzeng, Nigel H."  wrote:
 On 8/18/16, 3:57 PM, "License-discuss on behalf of Lawrence Rosen"
 
 wrote:
 
>Nigel Tzeng wrote:
>> The issue here is for code that is potentially quite substantial.  I
>>would think that would be a different scenario.
>
>If I include the works of Shakespeare in my software, it would of 
 course
>be substantial and yet still be public domain almost everywhere (?).
 
 If patents aren't a concern then okay.  Copyright lasts longer than
 patents so for anything that is in the public domain because of age 
 then
 no patents would still apply.
 
 There isn¹t a lot of code that has aged out.  Only code written between
 before 1963 and didn¹t get a renewal.
 
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 License-discuss@opensource.org
 https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss
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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Brian Behlendorf]

Do those follow the same rules as copyright?  E.g., when done by a USG 
employee, it's public domain in the US?


Seems like those should get covered by whatever folks come up with.

Brian

On Fri, 19 Aug 2016, Smith, McCoy wrote:

Yes
USG files patents all the time


On Aug 18, 2016, at 5:51 PM, Brian Behlendorf  wrote:


Totally agree.  But can the USG file patents?  I suppose research organizations 
can (MITRE, maybe even NASA?) so it's not that academic; but presumably any 
place where this public domain arises, it applies to patents too.  Would be 
nice to get that sorted.

Brian


On Thu, 18 Aug 2016, Chris DiBona wrote:
In military contracting , patent grants are key to the point where I wouldn't 
consider a non patent granting license from, say, lockheed as being open source 
at all.
On Aug 18, 2016 3:05 PM, "Tzeng, Nigel H."  wrote:
 On 8/18/16, 3:57 PM, "License-discuss on behalf of Lawrence Rosen"
 
 wrote:

>Nigel Tzeng wrote:
>> The issue here is for code that is potentially quite substantial.  I
>>would think that would be a different scenario.
>
>If I include the works of Shakespeare in my software, it would of course
>be substantial and yet still be public domain almost everywhere (?).

 If patents aren't a concern then okay.  Copyright lasts longer than
 patents so for anything that is in the public domain because of age then
 no patents would still apply.

 There isn¹t a lot of code that has aged out.  Only code written between
 before 1963 and didn¹t get a renewal.

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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Smith, McCoy]

Yes
USG files patents all the time

> On Aug 18, 2016, at 5:51 PM, Brian Behlendorf  wrote:
> 
> 
> Totally agree.  But can the USG file patents?  I suppose research 
> organizations can (MITRE, maybe even NASA?) so it's not that academic; but 
> presumably any place where this public domain arises, it applies to patents 
> too.  Would be nice to get that sorted.
> 
> Brian
> 
>> On Thu, 18 Aug 2016, Chris DiBona wrote:
>> In military contracting , patent grants are key to the point where I 
>> wouldn't consider a non patent granting license from, say, lockheed as being 
>> open source at all.
>> On Aug 18, 2016 3:05 PM, "Tzeng, Nigel H."  wrote:
>>  On 8/18/16, 3:57 PM, "License-discuss on behalf of Lawrence Rosen"
>>  > lro...@rosenlaw.com>
>>  wrote:
>> 
>>  >Nigel Tzeng wrote:
>>  >> The issue here is for code that is potentially quite substantial.  I
>>  >>would think that would be a different scenario.
>>  >
>>  >If I include the works of Shakespeare in my software, it would of 
>> course
>>  >be substantial and yet still be public domain almost everywhere (?).
>> 
>>  If patents aren't a concern then okay.  Copyright lasts longer than
>>  patents so for anything that is in the public domain because of age then
>>  no patents would still apply.
>> 
>>  There isn¹t a lot of code that has aged out.  Only code written between
>>  before 1963 and didn¹t get a renewal.
>> 
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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Brian Behlendorf]

Totally agree.  But can the USG file patents?  I suppose research 
organizations can (MITRE, maybe even NASA?) so it's not that academic; but 
presumably any place where this public domain arises, it applies to 
patents too.  Would be nice to get that sorted.


Brian

On Thu, 18 Aug 2016, Chris DiBona wrote:

In military contracting , patent grants are key to the point where I wouldn't 
consider a non patent granting license from, say, lockheed as being open source 
at all.


On Aug 18, 2016 3:05 PM, "Tzeng, Nigel H."  wrote:
  On 8/18/16, 3:57 PM, "License-discuss on behalf of Lawrence Rosen"
  
  wrote:


  >Nigel Tzeng wrote:
  >> The issue here is for code that is potentially quite substantial.  I
  >>would think that would be a different scenario.
  >
  >If I include the works of Shakespeare in my software, it would of course
  >be substantial and yet still be public domain almost everywhere (?).

  If patents aren't a concern then okay.  Copyright lasts longer than
  patents so for anything that is in the public domain because of age then
  no patents would still apply.

  There isn¹t a lot of code that has aged out.  Only code written between
  before 1963 and didn¹t get a renewal.

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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Chris DiBona]

In military contracting , patent grants are key to the point where I
wouldn't consider a non patent granting license from, say, lockheed as
being open source at all.

On Aug 18, 2016 3:05 PM, "Tzeng, Nigel H."  wrote:

> On 8/18/16, 3:57 PM, "License-discuss on behalf of Lawrence Rosen"
> 
> wrote:
>
>
> >Nigel Tzeng wrote:
> >> The issue here is for code that is potentially quite substantial.  I
> >>would think that would be a different scenario.
> >
> >If I include the works of Shakespeare in my software, it would of course
> >be substantial and yet still be public domain almost everywhere (?).
>
> If patents aren't a concern then okay.  Copyright lasts longer than
> patents so for anything that is in the public domain because of age then
> no patents would still apply.
>
> There isn¹t a lot of code that has aged out.  Only code written between
> before 1963 and didn¹t get a renewal.
>
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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Tzeng, Nigel H.]

On 8/18/16, 3:57 PM, "License-discuss on behalf of Lawrence Rosen"

wrote:


>Nigel Tzeng wrote:
>> The issue here is for code that is potentially quite substantial.  I
>>would think that would be a different scenario.
>
>If I include the works of Shakespeare in my software, it would of course
>be substantial and yet still be public domain almost everywhere (?).

If patents aren't a concern then okay.  Copyright lasts longer than
patents so for anything that is in the public domain because of age then
no patents would still apply.

There isn¹t a lot of code that has aged out.  Only code written between
before 1963 and didn¹t get a renewal.

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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Karan, Cem F CIV USARMY RDECOM ARL (US)]

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Tzeng, Nigel H.
> Sent: Thursday, August 18, 2016 4:26 PM
> To: Lawrence Rosen <lro...@rosenlaw.com>; license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. 
> Army Research Laboratory Open Source License (ARL OSL)
> 0.4.0
> 
> >Cem Karan wrote:
> 
> >> The only reason that the ARL OSL was proposed AT ALL is because there is a 
> >> strong concern that since USG code doesn't have copyright
> [1], any license that relies exclusively on copyright may be invalidated by 
> the courts [2].
> 
> 
> 
> >We understand that strong concern. Most of us don't share it.
> 
> 
> Well, if all lawyers agreed then IP cases would go a lot more quickly, no?
> 
> Plaintiff’s lawyer: We think X!
> Defendant’s lawyer: We agree!
> 
> I don’t believe that there is an OSD requirement that the lawyers on 
> License-Review/License-Discuss agree that the legal concern being
> addressed by a new license submission is valid.  Especially when other 
> lawyers disagree.
> 
> Given that NOSA is still in limbo, it might be fair (not really given how 
> long NOSA has been in limbo) to ask that ARL and NASA lawyers get
> together and address their concerns in one special purpose license since both 
> are trying to address legal concerns they believe are valid for
> USG OSS projects.  Although, with the current white house interest, both NASA 
> and ARL could punt the issue up to the Tony Scott at the
> OMB (or whomever Chris suggested) and say “here are our requirements…give us 
> a FedGov OSS license that address those needs and
> submit it to the OSI".
> 
> And then approve (or deny) that license quickly once submitted If it passes 
> the OSD and retire the existing NOSA license rather than sit on
> it for three years without resolution.  Hopefully, if the White House submits 
> a license to the OSI it is reviewed with a bit more alacrity.

Actually, we ARE in talks with NASA; the attorney at ARL that is working on 
this used to work at NASA, and so knows the right people to talk to over there.

Thanks,
Cem Karan


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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Tzeng, Nigel H.]

On 8/18/16, 4:24 PM, "License-discuss on behalf of Richard Fontana"
 wrote:


>On Thu, Aug 18, 2016 at 07:15:52PM +, Tzeng, Nigel H. wrote:
>> From: License-discuss
>>>ensource.org>> on behalf of "Smith, McCoy"
>>>
>> 
>> > Interestingly enough, the code of the code.gov site is licensed under
>>CC0 1.0:  
>>https://github.com/presidential-innovation-fellows/code-gov-web/blob/mast
>>er/LICENSE.md
>> 
>> But but but...that's not an OSI approved software license!
>> 
>> Why did that fail again?  The person who submitted didn't have standing
>>or something?
>
>The license steward withdrew the submission following negative
>reaction on license-review to the "No ... patent rights held by
>Affirmer are waived, abandoned, surrendered, licensed or otherwise
>affected by this document" clause.

Thank you Richard.  If the USG is using CC0 for their new OSS initiative
is this something that should be revisited?

Of course, you know I¹m of the opinion that is the OSI states a license is
open source if it passes the OSD then we should either amend the OSD to
require explicit patent grants moving forward or not block useful new
licenses because of the lack of a patent grant.

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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Smith, McCoy]

"I don't believe that there is an OSD requirement that the lawyers on 
License-Review/License-Discuss agree that the legal concern being addressed by 
a new license submission is valid.  *Especially when other lawyers disagree.*"

The problem is, I think to many of us commenting here, is that those other 
lawyers are not part of this conversation.  And for whatever reason have said 
they will not be.  So we're hearing "I'm not a lawyer, but unnamed lawyers have 
told me there is this problem, but have not explained their basis for finding 
that problem."

So there is likely some skepticism that there is a need at all for this 
license, as it seems to be just Apache 2.0, with clauses to address a problem 
that many (or all) of the lawyers on here are not even sure exists.

From: License-discuss [mailto:license-discuss-boun...@opensource.org] On Behalf 
Of Tzeng, Nigel H.
Sent: Thursday, August 18, 2016 1:26 PM
To: Lawrence Rosen; license-discuss@opensource.org
Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. 
Army Research Laboratory Open Source License (ARL OSL) 0.4.0


>Cem Karan wrote:

>> The only reason that the ARL OSL was proposed AT ALL is because there is a 
>> strong concern that since USG code doesn't have copyright [1], any license 
>> that relies exclusively on copyright may be invalidated by the courts [2].



>We understand that strong concern. Most of us don't share it.

Well, if all lawyers agreed then IP cases would go a lot more quickly, no?

Plaintiff's lawyer: We think X!
Defendant's lawyer: We agree!

I don't believe that there is an OSD requirement that the lawyers on 
License-Review/License-Discuss agree that the legal concern being addressed by 
a new license submission is valid.  Especially when other lawyers disagree.

Given that NOSA is still in limbo, it might be fair (not really given how long 
NOSA has been in limbo) to ask that ARL and NASA lawyers get together and 
address their concerns in one special purpose license since both are trying to 
address legal concerns they believe are valid for USG OSS projects.  Although, 
with the current white house interest, both NASA and ARL could punt the issue 
up to the Tony Scott at the OMB (or whomever Chris suggested) and say "here are 
our requirements...give us a FedGov OSS license that address those needs and 
submit it to the OSI".

And then approve (or deny) that license quickly once submitted If it passes the 
OSD and retire the existing NOSA license rather than sit on it for three years 
without resolution.  Hopefully, if the White House submits a license to the OSI 
it is reviewed with a bit more alacrity.
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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Tzeng, Nigel H.]

>Cem Karan wrote:

>> The only reason that the ARL OSL was proposed AT ALL is because there is a 
>> strong concern that since USG code doesn't have copyright [1], any license 
>> that relies exclusively on copyright may be invalidated by the courts [2].



>We understand that strong concern. Most of us don't share it.

Well, if all lawyers agreed then IP cases would go a lot more quickly, no?

Plaintiff's lawyer: We think X!
Defendant's lawyer: We agree!

I don't believe that there is an OSD requirement that the lawyers on 
License-Review/License-Discuss agree that the legal concern being addressed by 
a new license submission is valid.  Especially when other lawyers disagree.

Given that NOSA is still in limbo, it might be fair (not really given how long 
NOSA has been in limbo) to ask that ARL and NASA lawyers get together and 
address their concerns in one special purpose license since both are trying to 
address legal concerns they believe are valid for USG OSS projects.  Although, 
with the current white house interest, both NASA and ARL could punt the issue 
up to the Tony Scott at the OMB (or whomever Chris suggested) and say "here are 
our requirements...give us a FedGov OSS license that address those needs and 
submit it to the OSI".

And then approve (or deny) that license quickly once submitted If it passes the 
OSD and retire the existing NOSA license rather than sit on it for three years 
without resolution.  Hopefully, if the White House submits a license to the OSI 
it is reviewed with a bit more alacrity.
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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Richard Fontana]

On Thu, Aug 18, 2016 at 07:15:52PM +, Tzeng, Nigel H. wrote:
> From: License-discuss 
> >
>  on behalf of "Smith, McCoy" 
> >
> 
> > Interestingly enough, the code of the code.gov site is licensed under CC0 
> > 1.0:  
> > https://github.com/presidential-innovation-fellows/code-gov-web/blob/master/LICENSE.md
> 
> But but but...that's not an OSI approved software license!
> 
> Why did that fail again?  The person who submitted didn't have standing or 
> something?

The license steward withdrew the submission following negative
reaction on license-review to the "No ... patent rights held by
Affirmer are waived, abandoned, surrendered, licensed or otherwise
affected by this document" clause.

Richard
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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[John Cowan]

Diane Peters scripsit:

> Given this, it remains unclear how a license to the worldwide public would
> be invalidated by a court? Please say more.

Because we don't know what law a foreign court would apply.  It might
apply the Berne Convention, and say "This work has a copyright term of
zero years in its home country, so it has a copyright term of zero years
here."  Or it might apply its local law as if the work were a local work.
Or it might do something else.  Conflicts law is still rather primitive
and unpredictable.

-- 
John Cowan  http://www.ccil.org/~cowanco...@ccil.org
If you understand, things are just as they are.
if you do not understand, things are just as they are.
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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Lawrence Rosen]

Nigel Tzeng wrote:
> The issue here is for code that is potentially quite substantial.  I would 
> think that would be a different scenario.

If I include the works of Shakespeare in my software, it would of course be 
substantial and yet still be public domain almost everywhere (?). I license my 
entire work to you under the Apache 2.0 license. [This is what you should do 
with ARL software!]

If I also want to disclaim all warranties and liability against viruses and 
other malicious code, my Apache 2.0 contract will probably protect me in most 
jurisdictions. If Apple now takes my work and includes it in the next iPhone 
release, then Apple may become liable under commercial laws for electronic 
products in the U.S., and so perhaps Apple and I will eventually have a 
contract dispute or one of its customers may sue me for damages. 

I don't think that is a copyright lawsuit regardless of whether I own the 
copyright on the virus.

And Shakespeare is still free and not liable.

/Larry


-Original Message-
From: Tzeng, Nigel H. [mailto:nigel.tz...@jhuapl.edu] 
Sent: Thursday, August 18, 2016 12:34 PM
To: license-discuss@opensource.org
Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. 
Army Research Laboratory Open Source License (ARL OSL) 0.4.0

On 8/18/16, 11:03 AM, "License-discuss on behalf of Richard Fontana"
<license-discuss-boun...@opensource.org on behalf of font...@sharpeleven.org> 
wrote:


>As a few have pointed out, all code that is nominally licensed under 
>open source licenses will contain noncopyrighted portions.

While true, that¹s because they were not significant enough to have copyright.

The issue here is for code that is potentially quite substantial.  I would 
think that would be a different scenario.

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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Karan, Cem F CIV USARMY RDECOM ARL (US)]

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Richard Fontana
> Sent: Thursday, August 18, 2016 11:04 AM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: 
> U.S. Army Research Laboratory Open Source License (ARL OSL)
> 0.4.0
>
> On Thu, Aug 18, 2016 at 02:50:18PM +, Karan, Cem F CIV USARMY RDECOM ARL 
> (US) wrote:
> > >
> > > Even if you were correct in the assertions you've made about ARL
> > > code, why is a new license needed for contributors other than ARL?
> >
> > Are you suggesting a dual license scheme, where all copyrighted
> > portions are under Apache 2.0, and all non-copyrighted portions are under 
> > the ARL OSL?
>
> No, I'm just suggesting why not adopt a rule that all contributors (other 
> than ARL -- though for the reasons others have stated I think this
> should also apply to ARL) license contributions under the Apache License 
> 2.0.
>
> As a few have pointed out, all code that is nominally licensed under open 
> source licenses will contain noncopyrighted portions.

OK, so you're proposing that contributions that have copyright use the Apache 
2.0 license, and contributions that don't have copyright use the ARL OSL, 
correct?  I just want to make sure I fully understand what you're proposing.

Thanks,
Cem Karan



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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Tzeng, Nigel H.]

On 8/18/16, 11:03 AM, "License-discuss on behalf of Richard Fontana"
 wrote:


>As a few have pointed out, all code that is nominally licensed under
>open source licenses will contain noncopyrighted portions.

While true, that¹s because they were not significant enough to have
copyright.

The issue here is for code that is potentially quite substantial.  I would
think that would be a different scenario.

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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Diane Peters]

Copyright is not available for US government works as a matter of US
copyright law (section 105), but that does not mean those works may not be
restricted by copyright laws of other countries. Congress contemplated that
expressly.

“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.”

Notes of Committee on the Judiciary (re Section 105), H.R. Rep. No. 1476,
94th Cong., 2d Sess. 59 (1976)


Given this, it remains unclear how a license to the worldwide public would
be invalidated by a court? Please say more.


On Thu, Aug 18, 2016 at 10:51 AM, Karan, Cem F CIV USARMY RDECOM ARL (US) <
cem.f.karan@mail.mil> wrote:

> The only reason that the ARL OSL was proposed AT ALL is because there is a
> strong concern that since USG code doesn't have copyright [1], any license
> that relies exclusively on copyright may be invalidated by the courts
> [2].  If
> the USG had copyright, then I could stop pushing the ARL OSL entirely as we
> could use any of the OSI-supplied licenses.
>
> So to be 100% clear, we don't know if any copyright-based license will
> stand
> up in court for works that don't have copyright attached.  The only reason
> that the ARL OSL was proposed was to deal with that particular situation.
> If
> you have case law where the USG won a lawsuit over material licensed under
> one
> of the copyright-based OSI licenses where there was no claim of copyright,
> please provide it.  I can pass that to the ARL Legal team who can then
> review
> it.
>
> Thanks,
> Cem Karan
>
> [1] I'm making the usual assumption that this was code created by USG
> employees in the course of their duties; copyright can be assigned to the
> USG
> where and when it exists, but I'm ignoring that for right now.
>
> [2] My expectation is that it would be invalidated for the USG-supplied
> portion, but not for any portion that had copyright attached.  Note that
> this
> is just my opinion, and I have nothing to back it up.  IANAL.
>
> > -Original Message-
> > From: License-discuss [mailto:license-discuss-boun...@opensource.org] On
> > Behalf Of Smith, McCoy
> > Sent: Wednesday, August 17, 2016 2:54 PM
> > To: license-discuss@opensource.org
> > Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re:
> > U.S. Army Research Laboratory Open Source License (ARL OSL)
> > 0.4.0
> >
> > Or to put a finer point on it, the other issues you identify appear to be
> > ones that are explicitly addressed in many already-approved OSI
> > licenses, including Apache 2.0, the one you are modeling your license
> upon.
> >
> > I hope you're getting a sense that there are several lawyers on this
> mailing
> > list -- lawyers who have years of experience looking at,
> > debating, and giving advice on the issues you identify in this
> submission --
> > who think that your proposed license is a variant of Apache 2.0
> > designed to solve a "problem" for USG users with Apache 2.0 that we are
> > skeptical even exists.  Perhaps the ARL lawyers can clarify what
> > the problem is, and that we are missing something.  But I think at least
> I
> > am having a hard time understanding how this license does
> > anything that Apache 2.0 doesn't.
> >
> > -----Original Message-----
> > From: License-discuss
> > [Caution-mailto:license-discuss-boun...@opensource.org] On Behalf Of
> Richard
> > Fontana
> > Sent: Wednesday, August 17, 2016 11:33 AM
> > To: license-discuss@opensource.org
> > Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re:
> > U.S. Army Research Laboratory Open Source License (ARL OSL)
> > 0.4.0
> >
> > On Wed, Aug 17, 2016 at 06:17:07PM +, Karan, Cem F CIV USARMY RDECOM
> ARL
> > (US) wrote:
> > >
> > > Once again, liability isn't the only issue; there are also copyright
> > > issues (for contributors), and IP issues.  If we could solve the
> > > problem via a simple disclaimer of liability, we would.  We need to
> handle
> > > ALL the issues.
> >
> > Even if you were correct in the assertions you've made about ARL code,
> why
> > is a new license needed for contributors other than ARL?
>
>
>
> ___
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> https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss
>
>
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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Tzeng, Nigel H.]

From: License-discuss 
>
 on behalf of "Smith, McCoy" 
>

> Interestingly enough, the code of the code.gov site is licensed under CC0 
> 1.0:  
> https://github.com/presidential-innovation-fellows/code-gov-web/blob/master/LICENSE.md

But but but...that's not an OSI approved software license!

Why did that fail again?  The person who submitted didn't have standing or 
something?

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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[John Cowan]

Lawrence Rosen scripsit:

> We attorneys here will try to convince your attorneys of that if
> they consent to speak to us. You engineers should not volunteer to
> be translators in that discussion, but listen in. And we attorneys
> should speak candidly about copyright and contract law. Several of
> us are specialists, and several here have already volunteered to have
> that legal chat with your counsel.

If lawyers talked to other lawyers, they might end up changing their
minds, and that would never do.

"[M]uch enquiry having been made concerning a gentleman, who had quitted
a company where Johnson was, and no information being obtained; at
last Johnson observed, that 'he did not care to speak ill of any man
behind his back, but he believed the gentleman was an _attorney_'."
--Boswell's Life of Johnson

:-)

-- 
John Cowan  http://www.ccil.org/~cowanco...@ccil.org
Being understandable rather than obscurantist poses certain
risks, in that one's opinions are clear and therefore falsifiable
in the light of new data, but it has the advantage of encouraging
feedback from others.  --James A. Matisoff
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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Lawrence Rosen]

Cam Karan asked:

> If you have case law where the USG won a lawsuit over material licensed under 
> one of the copyright-based OSI licenses where there was no claim of 
> copyright, please provide it. 

 

A copyright lawsuit requires copyright, so that's impossible. 

 

A contract lawsuit requires damages and is usually fought in state (or small 
claims?) court without even being published. Ask your own attorneys if they 
have ever won a contract lawsuit in a state or federal court without proof of 
damages because the USG or anyone else merely distributed harmless public 
domain software.

 

/Larry

 

Lawrence Rosen

Rosenlaw ( <http://www.rosenlaw.com/> www.rosenlaw.com) 

3001 King Ranch Rd., Ukiah, CA 95482

Cell: 707-478-8932 

This email is licensed under  <https://creativecommons.org/licenses/by/4.0/> 
CC-BY-4.0. Please copy freely.  

 

From: Lawrence Rosen [mailto:lro...@rosenlaw.com] 
Sent: Thursday, August 18, 2016 11:15 AM
To: license-discuss@opensource.org
Cc: Lawrence Rosen <lro...@rosenlaw.com>
Subject: RE: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. 
Army Research Laboratory Open Source License (ARL OSL) 0.4.0

 

Cem Karan wrote:

> The only reason that the ARL OSL was proposed AT ALL is because there is a 
> strong concern that since USG code doesn't have copyright [1], any license 
> that relies exclusively on copyright may be invalidated by the courts [2].

 

We understand that strong concern. Most of us don't share it.

 

Many of us have noted that NO FOSS LICENSE relies exclusively on copyright law. 
That argument was made here on this list years ago. No court anywhere has ever 
decided a FOSS case without also using CONTRACT interpretation rules.

 

We also noted that MOST FOSS SOFTWARE already contains public domain 
components. Perhaps ALL FOSS SOFTWARE, considering that engineers often claim 
copyright on more than they deserve.

 

Our U.S. Army software is no different: Portions copyright; portions not.

 

We attorneys here will try to convince your attorneys of that if they consent 
to speak to us. You engineers should not volunteer to be translators in that 
discussion, but listen in. And we attorneys should speak candidly about 
copyright and contract law. Several of us are specialists, and several here 
have already volunteered to have that legal chat with your counsel.

 

/Larry

 

Lawrence Rosen

Rosenlaw (www.rosenlaw.com <http://www.rosenlaw.com> ) 

3001 King Ranch Rd., Ukiah, CA 95482

Cell: 707-478-8932 

 

 

-Original Message-
From: Karan, Cem F CIV USARMY RDECOM ARL (US) [mailto:cem.f.karan@mail.mil] 
Sent: Thursday, August 18, 2016 10:52 AM
To: license-discuss@opensource.org <mailto:license-discuss@opensource.org> 
Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. 
Army Research Laboratory Open Source License (ARL OSL) 0.4.0

 

The only reason that the ARL OSL was proposed AT ALL is because there is a 
strong concern that since USG code doesn't have copyright [1], any license that 
relies exclusively on copyright may be invalidated by the courts [2].  If the 
USG had copyright, then I could stop pushing the ARL OSL entirely as we could 
use any of the OSI-supplied licenses.

 

So to be 100% clear, we don't know if any copyright-based license will stand up 
in court for works that don't have copyright attached.  The only reason that 
the ARL OSL was proposed was to deal with that particular situation.  If you 
have case law where the USG won a lawsuit over material licensed under one of 
the copyright-based OSI licenses where there was no claim of copyright, please 
provide it.  I can pass that to the ARL Legal team who can then review it.

 

Thanks,

Cem Karan

 

[1] I'm making the usual assumption that this was code created by USG employees 
in the course of their duties; copyright can be assigned to the USG where and 
when it exists, but I'm ignoring that for right now.

 

[2] My expectation is that it would be invalidated for the USG-supplied 
portion, but not for any portion that had copyright attached.  Note that this 
is just my opinion, and I have nothing to back it up.  IANAL.

 

> -Original Message-

> From: License-discuss [ <mailto:license-discuss-boun...@opensource.org> 
> mailto:license-discuss-boun...@opensource.org] 

> On Behalf Of Smith, McCoy

> Sent: Wednesday, August 17, 2016 2:54 PM

> To:  <mailto:license-discuss@opensource.org> license-discuss@opensource.org

> Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: 

> U.S. Army Research Laboratory Open Source License (ARL OSL)

> 0.4.0

> 

> Or to put a finer point on it, the other issues you identify appear to 

> be ones that are explicitly addressed in many already-approved OSI 

> licenses, including Apache 2.0, the one you are modeling your license upon.

> 

> I hope

Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Radcliffe, Mark]

I suggest using the Apache contribution license agreements rather than Apache 
itself.

-Original Message-
From: License-discuss [mailto:license-discuss-boun...@opensource.org] On Behalf 
Of Richard Fontana
Sent: Thursday, August 18, 2016 8:04 AM
To: license-discuss@opensource.org
Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. 
Army Research Laboratory Open Source License (ARL OSL) 0.4.0

On Thu, Aug 18, 2016 at 02:50:18PM +, Karan, Cem F CIV USARMY RDECOM ARL 
(US) wrote:
> >
> > Even if you were correct in the assertions you've made about ARL 
> > code, why is a new license needed for contributors other than ARL?
> 
> Are you suggesting a dual license scheme, where all copyrighted 
> portions are under Apache 2.0, and all non-copyrighted portions are under the 
> ARL OSL?

No, I'm just suggesting why not adopt a rule that all contributors (other than 
ARL -- though for the reasons others have stated I think this should also apply 
to ARL) license contributions under the Apache License 2.0.

As a few have pointed out, all code that is nominally licensed under open 
source licenses will contain noncopyrighted portions.
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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Karan, Cem F CIV USARMY RDECOM ARL (US)]

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Brian Behlendorf
> Sent: Wednesday, August 17, 2016 4:25 PM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: 
> U.S. Army Research Laboratory Open Source License (ARL OSL)
> 0.4.0
>
> On Wed, 17 Aug 2016, Smith, McCoy wrote:
> > I hope you're getting a sense that there are several lawyers on this
> > mailing list -- lawyers who have years of experience looking at,
> > debating, and giving advice on the issues you identify in this
> > submission -- who think that your proposed license is a variant of
> > Apache 2.0 designed to solve a "problem" for USG users with Apache 2.0
> > that we are skeptical even exists.  Perhaps the ARL lawyers can
> > clarify what the problem is, and that we are missing something.  But I
> > think at least I am having a hard time understanding how this license
> > does anything that Apache 2.0 doesn't.
>
> Is there something that a non-governmental entity can do to help with this, 
> by simply redistributing under AL2.0 that which they obtained
> from ARL by "contract" such as this license?  E.g., if this license was used 
> as the contributor agreement to a project hosted at the Apache
> Software Foundation, could it then be redistributed by the ASF under AL2.0, 
> with appropriate credit given in a Contributing.md?  Being an
> IP laundry service for government is an awful reason to be an Apache 
> project, but if there some other reason for ARL's code to be hosted
> there or at a similar organization (whether NGO or for-profit company even) 
> that might solve the problem, and then doesn't have to
> worry about being an "open source license".  A government agency (or branch 
> of the U.S. military) isn't really a great home for the
> governance of a code base and community anyways.

Actually, this was one of the first things we looked into; not ASF directly, 
but by having a contractor take ownership, and then assign copyright back to 
the USG, or even release it on behalf of the USG.  Unfortunately, it doesn't 
work legally as there is no copyright for the contractor (or anyone else) to 
take over, so nothing to launder.

Thanks,
Cem Karan


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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Karan, Cem F CIV USARMY RDECOM ARL (US)]

The only reason that the ARL OSL was proposed AT ALL is because there is a 
strong concern that since USG code doesn't have copyright [1], any license 
that relies exclusively on copyright may be invalidated by the courts [2].  If 
the USG had copyright, then I could stop pushing the ARL OSL entirely as we 
could use any of the OSI-supplied licenses.

So to be 100% clear, we don't know if any copyright-based license will stand 
up in court for works that don't have copyright attached.  The only reason 
that the ARL OSL was proposed was to deal with that particular situation.  If 
you have case law where the USG won a lawsuit over material licensed under one 
of the copyright-based OSI licenses where there was no claim of copyright, 
please provide it.  I can pass that to the ARL Legal team who can then review 
it.

Thanks,
Cem Karan

[1] I'm making the usual assumption that this was code created by USG 
employees in the course of their duties; copyright can be assigned to the USG 
where and when it exists, but I'm ignoring that for right now.

[2] My expectation is that it would be invalidated for the USG-supplied 
portion, but not for any portion that had copyright attached.  Note that this 
is just my opinion, and I have nothing to back it up.  IANAL.

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Smith, McCoy
> Sent: Wednesday, August 17, 2016 2:54 PM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: 
> U.S. Army Research Laboratory Open Source License (ARL OSL)
> 0.4.0
>
> Or to put a finer point on it, the other issues you identify appear to be 
> ones that are explicitly addressed in many already-approved OSI
> licenses, including Apache 2.0, the one you are modeling your license upon.
>
> I hope you're getting a sense that there are several lawyers on this mailing 
> list -- lawyers who have years of experience looking at,
> debating, and giving advice on the issues you identify in this submission --  
> who think that your proposed license is a variant of Apache 2.0
> designed to solve a "problem" for USG users with Apache 2.0 that we are 
> skeptical even exists.  Perhaps the ARL lawyers can clarify what
> the problem is, and that we are missing something.  But I think at least I 
> am having a hard time understanding how this license does
> anything that Apache 2.0 doesn't.
>
> -Original Message-
> From: License-discuss 
> [Caution-mailto:license-discuss-boun...@opensource.org] On Behalf Of Richard 
> Fontana
> Sent: Wednesday, August 17, 2016 11:33 AM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: 
> U.S. Army Research Laboratory Open Source License (ARL OSL)
> 0.4.0
>
> On Wed, Aug 17, 2016 at 06:17:07PM +, Karan, Cem F CIV USARMY RDECOM ARL 
> (US) wrote:
> >
> > Once again, liability isn't the only issue; there are also copyright
> > issues (for contributors), and IP issues.  If we could solve the
> > problem via a simple disclaimer of liability, we would.  We need to handle 
> > ALL the issues.
>
> Even if you were correct in the assertions you've made about ARL code, why 
> is a new license needed for contributors other than ARL?




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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Karan, Cem F CIV USARMY RDECOM ARL (US)]

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Engel Nyst
> Sent: Wednesday, August 17, 2016 2:59 PM
> To: license-discuss <license-discuss@opensource.org>
> Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: 
> U.S. Army Research Laboratory Open Source License (ARL OSL)
> 0.4.0
>
> On Wed, Aug 17, 2016 at 8:32 PM, Richard Fontana <font...@sharpeleven.org> 
> wrote:
> > On Wed, Aug 17, 2016 at 06:17:07PM +, Karan, Cem F CIV USARMY RDECOM 
> > ARL (US) wrote:
> >>
> >> Once again, liability isn't the only issue; there are also copyright
> >> issues (for contributors), and IP issues.  If we could solve the
> >> problem via a simple disclaimer of liability, we would.  We need to 
> >> handle ALL the issues.
> >
> > Even if you were correct in the assertions you've made about ARL code,
> > why is a new license needed for contributors other than ARL?
>
> I'm assuming it's because they (ARL) don't have section 5 otherwise.
>
> ARL OSL can apply to public domain works and have a clause 5 to point to why 
> contributors' code is under AL2.0.
> While arguably unnecessary, I believe I see where they're coming from, it's 
> not hurting, and it's better in a document that equally gives
> from USG all AL2.0-for-public-domain-works including patent grant.
>
> Just my understanding of the needs of the OP.

Precisely; copyright is just one form of IP.  We want to make sure that all IP 
is covered as completely as possible.

Thanks,
Cem Karan



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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Smith, McCoy]

Interestingly enough, the code of the code.gov site is licensed under CC0 1.0:  
https://github.com/presidential-innovation-fellows/code-gov-web/blob/master/LICENSE.md


From: License-discuss [mailto:license-discuss-boun...@opensource.org] On Behalf 
Of Chris DiBona
Sent: Thursday, August 18, 2016 8:53 AM
To: license-discuss@opensource.org
Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. 
Army Research Laboratory Open Source License (ARL OSL) 0.4.0


Cem, I'd be happy to put you in touch with Alvand in the white house if you are 
not already chatting. Email me off thread if so..

On Aug 18, 2016 8:47 AM, "Smith, McCoy" 
<mccoy.sm...@intel.com<mailto:mccoy.sm...@intel.com>> wrote:
Given that the White House just released a memorandum on encouraging the USG to 
make more use of open source, and specifically said that it will be releasing 
licensing guidance on code.gov<http://code.gov>, perhaps the issues around 17 
USC 105 and existing open source licenses will be resolved (or at least, the 
issues around existing open source licenses will be identified clearly) on 
behalf of all the USG:
https://www.whitehouse.gov/sites/default/files/omb/memoranda/2016/m_16_21.pdf


-Original Message-
From: License-discuss 
[mailto:license-discuss-boun...@opensource.org<mailto:license-discuss-boun...@opensource.org>]
 On Behalf Of Christopher Sean Morrison
Sent: Thursday, August 18, 2016 1:27 AM
To: license-discuss@opensource.org<mailto:license-discuss@opensource.org>
Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. 
Army Research Laboratory Open Source License (ARL OSL) 0.4.0

There is exceptional evidence that the status quo is wholly inadequate.  OSI 
fails to recognize challenges faced within the Federal Government, and it hurts 
open source adoption.

Statistically speaking as the largest producer of source code on the planet, 
the U.S. Federal Government *should* be one of the largest participants in open 
source yet there is barely a presence.  Some people recognize NASA as one of 
the largest proponents in the Gov’t space, yet they are one of the smaller 
agencies with one of the smallest budgets.  Federal R, which is predominantly 
computer science work, is more than double the size of NASA’s entire agency!  
There are more computer scientists writing code for the Gov’t than there are 
for any single company in existence, including the likes of Google and 
Microsoft.

Let that sink in for a minute.

Where is all the code?  If it was simply a release issue, there would at least 
be lots of public domain code floating — there’s demonstrably not. [1]  If even 
a measurable percentage of Government lawyers felt existing OSI licenses were 
apropos, there would be a ample evidence of agencies using MIT/Apache/LGPL/etc 
— there’s demonstrably not. [2]

There has been presented here a position by at least two major federal agencies 
(DoD and NASA) that copyright-based licensing is specifically viewed as a 
problem by their respective lawyers.  There is obvious disagreement and 
uncertainty, but therein lies a fundamental problem.  Nobody’s opinion has been 
tested.  Nobody can prove that their point is any more or less correct.

Lacking case law evidence, all that remains is overwhelming industry evidence 
that what is currently available is not in any way viewed as adequate in the 
Federal space.  At a minimum, there is enough uncertainty that there is zero-% 
penetration.

You have agencies here trying their damnedest to find ways to support open 
source amidst ambiguous regulations, unique legal circumstances (copyright), 
notoriously risk-averse environments, and untested theories.  You have specific 
representatives (for huge organizations) here saying “I would use this, it 
would help us”.  That to me those make for pretty freaking compelling reasons 
to support any new open source licensing, if it will increase adoption of open 
source in the Federal space.

I ran on this platform for the 2016 OSI board election and missed it by fewer 
votes than I have fingers.  This is a problem to a tremendous number of people. 
 OSI licensing isn’t the only problem [3] faced by the Federal Government, but 
it is one of the most significant that has solutions being presented.  NOSA 1.3 
was offered but was then immediately shot down by FSF (for good reason, why is 
it even still on OSI's list??); NOSA 2.0 won’t likely be a solution without 
rework.  ARL OSL aims to be so transparently compatible that it arguably limits 
proliferation (to the extent you can while creating a new agreement) and has 
much greater adoption potential with ASL’s rigor behind it.

Dissenting won’t make agencies suddenly agree to just slap copyright-based 
licensing on their works or even releasing into PD.  It will just continue to 
be lost opportunities for open source until there is congressional mandate, 
DoJ/DoC clarity, or case law clari

Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Smith, McCoy]

Given that the White House just released a memorandum on encouraging the USG to 
make more use of open source, and specifically said that it will be releasing 
licensing guidance on code.gov, perhaps the issues around 17 USC 105 and 
existing open source licenses will be resolved (or at least, the issues around 
existing open source licenses will be identified clearly) on behalf of all the 
USG:
https://www.whitehouse.gov/sites/default/files/omb/memoranda/2016/m_16_21.pdf


-Original Message-
From: License-discuss [mailto:license-discuss-boun...@opensource.org] On Behalf 
Of Christopher Sean Morrison
Sent: Thursday, August 18, 2016 1:27 AM
To: license-discuss@opensource.org
Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. 
Army Research Laboratory Open Source License (ARL OSL) 0.4.0

There is exceptional evidence that the status quo is wholly inadequate.  OSI 
fails to recognize challenges faced within the Federal Government, and it hurts 
open source adoption.

Statistically speaking as the largest producer of source code on the planet, 
the U.S. Federal Government *should* be one of the largest participants in open 
source yet there is barely a presence.  Some people recognize NASA as one of 
the largest proponents in the Gov’t space, yet they are one of the smaller 
agencies with one of the smallest budgets.  Federal R, which is predominantly 
computer science work, is more than double the size of NASA’s entire agency!  
There are more computer scientists writing code for the Gov’t than there are 
for any single company in existence, including the likes of Google and 
Microsoft.

Let that sink in for a minute.

Where is all the code?  If it was simply a release issue, there would at least 
be lots of public domain code floating — there’s demonstrably not. [1]  If even 
a measurable percentage of Government lawyers felt existing OSI licenses were 
apropos, there would be a ample evidence of agencies using MIT/Apache/LGPL/etc 
— there’s demonstrably not. [2]

There has been presented here a position by at least two major federal agencies 
(DoD and NASA) that copyright-based licensing is specifically viewed as a 
problem by their respective lawyers.  There is obvious disagreement and 
uncertainty, but therein lies a fundamental problem.  Nobody’s opinion has been 
tested.  Nobody can prove that their point is any more or less correct.

Lacking case law evidence, all that remains is overwhelming industry evidence 
that what is currently available is not in any way viewed as adequate in the 
Federal space.  At a minimum, there is enough uncertainty that there is zero-% 
penetration.

You have agencies here trying their damnedest to find ways to support open 
source amidst ambiguous regulations, unique legal circumstances (copyright), 
notoriously risk-averse environments, and untested theories.  You have specific 
representatives (for huge organizations) here saying “I would use this, it 
would help us”.  That to me those make for pretty freaking compelling reasons 
to support any new open source licensing, if it will increase adoption of open 
source in the Federal space.

I ran on this platform for the 2016 OSI board election and missed it by fewer 
votes than I have fingers.  This is a problem to a tremendous number of people. 
 OSI licensing isn’t the only problem [3] faced by the Federal Government, but 
it is one of the most significant that has solutions being presented.  NOSA 1.3 
was offered but was then immediately shot down by FSF (for good reason, why is 
it even still on OSI's list??); NOSA 2.0 won’t likely be a solution without 
rework.  ARL OSL aims to be so transparently compatible that it arguably limits 
proliferation (to the extent you can while creating a new agreement) and has 
much greater adoption potential with ASL’s rigor behind it.

Dissenting won’t make agencies suddenly agree to just slap copyright-based 
licensing on their works or even releasing into PD.  It will just continue to 
be lost opportunities for open source until there is congressional mandate, 
DoJ/DoC clarity, or case law clarity.  White house is currently advocating and 
creating discussion, but we’ll see if that survives the election.

Cheers!
Sean

[1] NIST, NASA, and 18F are outliers among hundreds of agencies.
[2] What you can find are works involving contractors where copyright gets 
assigned.
[3] Cultural ignorance is so maligned that DoD CIO actually had to tell 
agencies it’s *illegal* to NOT consider open source. 


> On Aug 17, 2016, at 5:46 PM, Radcliffe, Mark <mark.radcli...@dlapiper.com> 
> wrote:
> 
> I agree with McCoy.  As outside General Counsel of the OSI for more than 10 
> years, the drafting of a new "open source" license requires strong reasons.  
> The reasons that I have seen in the list don't meet that standard.  I 
> strongly recommend against trying to develop a new "open source" license. 
> 
&g

Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Richard Fontana]

On Thu, Aug 18, 2016 at 02:50:18PM +, Karan, Cem F CIV USARMY RDECOM ARL 
(US) wrote:
> >
> > Even if you were correct in the assertions you've made about ARL code, why 
> > is a new license needed for contributors other than ARL?
> 
> Are you suggesting a dual license scheme, where all copyrighted portions are 
> under Apache 2.0, and all non-copyrighted portions are under the ARL OSL?

No, I'm just suggesting why not adopt a rule that all contributors
(other than ARL -- though for the reasons others have stated I think
this should also apply to ARL) license contributions under the Apache
License 2.0.

As a few have pointed out, all code that is nominally licensed under
open source licenses will contain noncopyrighted portions.
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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Karan, Cem F CIV USARMY RDECOM ARL (US)]

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Richard Fontana
> Sent: Wednesday, August 17, 2016 2:33 PM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: 
> U.S. Army Research Laboratory Open Source License (ARL OSL)
> 0.4.0
>
> On Wed, Aug 17, 2016 at 06:17:07PM +, Karan, Cem F CIV USARMY RDECOM ARL 
> (US) wrote:
> >
> > Once again, liability isn't the only issue; there are also copyright
> > issues (for contributors), and IP issues.  If we could solve the
> > problem via a simple disclaimer of liability, we would.  We need to handle 
> > ALL the issues.
>
> Even if you were correct in the assertions you've made about ARL code, why 
> is a new license needed for contributors other than ARL?

Are you suggesting a dual license scheme, where all copyrighted portions are 
under Apache 2.0, and all non-copyrighted portions are under the ARL OSL?

Thanks,
Cem Karan



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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Christopher Sean Morrison]

There is exceptional evidence that the status quo is wholly inadequate.  OSI 
fails to recognize challenges faced within the Federal Government, and it hurts 
open source adoption.

Statistically speaking as the largest producer of source code on the planet, 
the U.S. Federal Government *should* be one of the largest participants in open 
source yet there is barely a presence.  Some people recognize NASA as one of 
the largest proponents in the Gov’t space, yet they are one of the smaller 
agencies with one of the smallest budgets.  Federal R, which is predominantly 
computer science work, is more than double the size of NASA’s entire agency!  
There are more computer scientists writing code for the Gov’t than there are 
for any single company in existence, including the likes of Google and 
Microsoft.

Let that sink in for a minute.

Where is all the code?  If it was simply a release issue, there would at least 
be lots of public domain code floating — there’s demonstrably not. [1]  If even 
a measurable percentage of Government lawyers felt existing OSI licenses were 
apropos, there would be a ample evidence of agencies using MIT/Apache/LGPL/etc 
— there’s demonstrably not. [2]

There has been presented here a position by at least two major federal agencies 
(DoD and NASA) that copyright-based licensing is specifically viewed as a 
problem by their respective lawyers.  There is obvious disagreement and 
uncertainty, but therein lies a fundamental problem.  Nobody’s opinion has been 
tested.  Nobody can prove that their point is any more or less correct.

Lacking case law evidence, all that remains is overwhelming industry evidence 
that what is currently available is not in any way viewed as adequate in the 
Federal space.  At a minimum, there is enough uncertainty that there is zero-% 
penetration.

You have agencies here trying their damnedest to find ways to support open 
source amidst ambiguous regulations, unique legal circumstances (copyright), 
notoriously risk-averse environments, and untested theories.  You have specific 
representatives (for huge organizations) here saying “I would use this, it 
would help us”.  That to me those make for pretty freaking compelling reasons 
to support any new open source licensing, if it will increase adoption of open 
source in the Federal space.

I ran on this platform for the 2016 OSI board election and missed it by fewer 
votes than I have fingers.  This is a problem to a tremendous number of people. 
 OSI licensing isn’t the only problem [3] faced by the Federal Government, but 
it is one of the most significant that has solutions being presented.  NOSA 1.3 
was offered but was then immediately shot down by FSF (for good reason, why is 
it even still on OSI's list??); NOSA 2.0 won’t likely be a solution without 
rework.  ARL OSL aims to be so transparently compatible that it arguably limits 
proliferation (to the extent you can while creating a new agreement) and has 
much greater adoption potential with ASL’s rigor behind it.

Dissenting won’t make agencies suddenly agree to just slap copyright-based 
licensing on their works or even releasing into PD.  It will just continue to 
be lost opportunities for open source until there is congressional mandate, 
DoJ/DoC clarity, or case law clarity.  White house is currently advocating and 
creating discussion, but we’ll see if that survives the election.

Cheers!
Sean

[1] NIST, NASA, and 18F are outliers among hundreds of agencies.
[2] What you can find are works involving contractors where copyright gets 
assigned.
[3] Cultural ignorance is so maligned that DoD CIO actually had to tell 
agencies it’s *illegal* to NOT consider open source. 


> On Aug 17, 2016, at 5:46 PM, Radcliffe, Mark <mark.radcli...@dlapiper.com> 
> wrote:
> 
> I agree with McCoy.  As outside General Counsel of the OSI for more than 10 
> years, the drafting of a new "open source" license requires strong reasons.  
> The reasons that I have seen in the list don't meet that standard.  I 
> strongly recommend against trying to develop a new "open source" license. 
> 
> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Smith, McCoy
> Sent: Wednesday, August 17, 2016 11:54 AM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. 
> Army Research Laboratory Open Source License (ARL OSL) 0.4.0
> 
> Or to put a finer point on it, the other issues you identify appear to be 
> ones that are explicitly addressed in many already-approved OSI licenses, 
> including Apache 2.0, the one you are modeling your license upon.
> 
> I hope you're getting a sense that there are several lawyers on this mailing 
> list -- lawyers who have years of experience looking at, debating, and giving 
> advice on the issues you identify in this sub

Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Brian Behlendorf]

On Wed, 17 Aug 2016, Smith, McCoy wrote:
I hope you're getting a sense that there are several lawyers on this 
mailing list -- lawyers who have years of experience looking at, 
debating, and giving advice on the issues you identify in this 
submission -- who think that your proposed license is a variant of 
Apache 2.0 designed to solve a "problem" for USG users with Apache 2.0 
that we are skeptical even exists.  Perhaps the ARL lawyers can clarify 
what the problem is, and that we are missing something.  But I think at 
least I am having a hard time understanding how this license does 
anything that Apache 2.0 doesn't.


Is there something that a non-governmental entity can do to help with 
this, by simply redistributing under AL2.0 that which they obtained from 
ARL by "contract" such as this license?  E.g., if this license was used as 
the contributor agreement to a project hosted at the Apache Software 
Foundation, could it then be redistributed by the ASF under AL2.0, with 
appropriate credit given in a Contributing.md?  Being an IP laundry 
service for government is an awful reason to be an Apache project, but if 
there some other reason for ARL's code to be hosted there or at a similar 
organization (whether NGO or for-profit company even) that might solve the 
problem, and then doesn't have to worry about being an "open source 
license".  A government agency (or branch of the U.S. military) isn't 
really a great home for the governance of a code base and community 
anyways.


Brian
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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Engel Nyst]

On Wed, Aug 17, 2016 at 8:32 PM, Richard Fontana
 wrote:
> On Wed, Aug 17, 2016 at 06:17:07PM +, Karan, Cem F CIV USARMY RDECOM ARL 
> (US) wrote:
>>
>> Once again, liability isn't the only issue; there are also copyright issues
>> (for contributors), and IP issues.  If we could solve the problem via a 
>> simple
>> disclaimer of liability, we would.  We need to handle ALL the issues.
>
> Even if you were correct in the assertions you've made about ARL code,
> why is a new license needed for contributors other than ARL?

I'm assuming it's because they (ARL) don't have section 5 otherwise.

ARL OSL can apply to public domain works and have a clause 5 to point
to why contributors' code is under AL2.0.
While arguably unnecessary, I believe I see where they're coming from,
it's not hurting, and it's better in a document that equally gives
from USG all AL2.0-for-public-domain-works including patent grant.

Just my understanding of the needs of the OP.
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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Smith, McCoy]

Or to put a finer point on it, the other issues you identify appear to be ones 
that are explicitly addressed in many already-approved OSI licenses, including 
Apache 2.0, the one you are modeling your license upon.

I hope you're getting a sense that there are several lawyers on this mailing 
list -- lawyers who have years of experience looking at, debating, and giving 
advice on the issues you identify in this submission -- who think that your 
proposed license is a variant of Apache 2.0 designed to solve a "problem" for 
USG users with Apache 2.0 that we are skeptical even exists.  Perhaps the ARL 
lawyers can clarify what the problem is, and that we are missing something.  
But I think at least I am having a hard time understanding how this license 
does anything that Apache 2.0 doesn't.

-Original Message-
From: License-discuss [mailto:license-discuss-boun...@opensource.org] On Behalf 
Of Richard Fontana
Sent: Wednesday, August 17, 2016 11:33 AM
To: license-discuss@opensource.org
Subject: Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. 
Army Research Laboratory Open Source License (ARL OSL) 0.4.0

On Wed, Aug 17, 2016 at 06:17:07PM +, Karan, Cem F CIV USARMY RDECOM ARL 
(US) wrote:
> 
> Once again, liability isn't the only issue; there are also copyright 
> issues (for contributors), and IP issues.  If we could solve the 
> problem via a simple disclaimer of liability, we would.  We need to handle 
> ALL the issues.

Even if you were correct in the assertions you've made about ARL code, why is a 
new license needed for contributors other than ARL?











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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Richard Fontana]

On Wed, Aug 17, 2016 at 06:17:07PM +, Karan, Cem F CIV USARMY RDECOM ARL 
(US) wrote:
> 
> Once again, liability isn't the only issue; there are also copyright issues 
> (for contributors), and IP issues.  If we could solve the problem via a 
> simple 
> disclaimer of liability, we would.  We need to handle ALL the issues.

Even if you were correct in the assertions you've made about ARL code,
why is a new license needed for contributors other than ARL?











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Re: [License-discuss] [Non-DoD Source] Re: [Non-DoD Source] Re: U.S. Army Research Laboratory Open Source License (ARL OSL) 0.4.0

[Karan, Cem F CIV USARMY RDECOM ARL (US)]

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Smith, McCoy
> Sent: Wednesday, August 17, 2016 11:34 AM
> To: license-discuss@opensource.org
> Subject: [Non-DoD Source] Re: [License-discuss] [Non-DoD Source] Re: U.S. 
> Army Research Laboratory Open Source License (ARL OSL) 0.4.0
>
> I find it odd that your lawyers are making you argue the legal issues here 
> even though you aren't a lawyer, and won't themselves join in to
> the conversation.

They have their reasons, but I'll try to get at least one on this list again.

> Further on my point, the US DOJ (i.e., the top government lawyers in the 
> USA) website states that most of the material on their website is
> public domain and freely usable by the public, yet still appends a 
> disclaimer of liability to that material:  Caution-
> https://www.justice.gov/legalpolicies  That seems to me like a pretty 
> concrete example of the USG understanding that a disclaimer of
> liability is not null and void just because the materials for which 
> liability is disclaimed is not licensable because it is in the public 
> domain.
> The very problem the ARL lawyers are saying this new license proposal is 
> attempting to solve.

Once again, liability isn't the only issue; there are also copyright issues 
(for contributors), and IP issues.  If we could solve the problem via a simple 
disclaimer of liability, we would.  We need to handle ALL the issues.

Thanks,
Cem Karan


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