Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and the US Government

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

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Karan, Cem F CIV USARMY RDECOM ARL (US)
> Sent: Monday, August 28, 2017 12:00 PM
> To: Richard Fontana <font...@sharpeleven.org>
> Cc: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and 
> the US Government
>
> > -Original Message-
> > From: Richard Fontana [Caution-mailto:font...@sharpeleven.org]
> > Sent: Monday, August 28, 2017 11:39 AM
> > To: Karan, Cem F CIV USARMY RDECOM ARL (US) <cem.f.karan@mail.mil>
> > Cc: license-discuss@opensource.org
> > Subject: [Non-DoD Source] Re: NOSA 2.0, Copyfraud and the US
> > Government
> >
> > On Mon, Aug 28, 2017 at 02:18:10PM +, Karan, Cem F CIV USARMY
> > RDECOM ARL
> > (US) wrote:
> > > Hi all, as you know I've been pushing the position that the US
> > > Government may have problems using copyright-based licenses on works
> > > that do not have copyright attached.  One of the lawyers I've been
> > > working on this with has been kind enough to dig up the exact
> > > statutes and give some clearer legal reasoning on what the issues
> > > are.  It basically boils down to two issues; first, there is
> > > question of severability
> > > (Caution-Caution-https://en.wikipedia.org/wiki/Severability) which
> > > I've touched on before, and the second has to do with copyfraud
> > > (Caution-Caution-https://en.wikipedia.org/wiki/Copyfraud).
> > > Copyfraud is defined within 17 U.S.C. 506, section (c)
> > > (Caution-Caution-https://www.gpo.gov/fdsys/pkg/USCODE-2010-title17/html/USCODE-2010-title17-chap5-sec506.htm).
> > > I've copied out the relevant language below; the commentary within
> > > the brackets is from ARL's lawyer:
> > >
> > > """
> > > (c) Fraudulent Copyright Notice.-
> > > Any person who, with fraudulent intent, places on any article a
> > > notice of copyright or words of the same purport that such person
> > > knows to be false, or who, with fraudulent intent, publicly
> > > distributes or imports for public distribution any article bearing
> > > such notice or words that such person knows to be false, shall be fined 
> > > not more than $2,500.
> > > [Note - Any software pushed out under Open Source would not have a
> > > notice of copyright affixed to the software. However, would software
> > > pushed out under an Open Source license that assumes the existence
> > > of copyright be considered tantamount to a notice of copyright and
> > > therefore an actionable fraud under this section?  Don't know.] """
> > >
> > > I know that there were questions at one time about the need for
> > > special licenses/agreements like NOSA 2.0, but this is one of those
> > > potential problems.  Copyright-based licenses are great for works
> > > that have copyright attached, but they may be problematic for works
> > > that don't have copyright attached.
> >
> > As has been pointed out before, I think, in software (including but
> > not limited to open source) copyright notices are commonly juxtaposed
> > with material that is clearly or likely not subject to copyright.
> >
> > Anyway, the theoretical risk here could be eliminated in lots of ways,
> > it seems to me (even without getting into what would be required to
> > show 'fraudulent intent'). For example, the US government could
> > include a copyright and license notice like the following:
> >
> >   The following material may not be subject to copyright in the United
> >   States under 17 U.S.C. 105. To the extent it is subject to
> >   copyright, it is released under the following open source license:
> > [...]
> >
> > There's also the approach that is seen in
> > Caution-Caution-https://github.com/deptofdefense/code.mil/blob/master/Proposal/INTENT.md.
> >
> > > So, given that we had come up with the idea of using two licenses in
> > > projects
> > > (CC0 for portions of a work that don't have copyright, and an
> > > OSI-approved license for portions of a work that do have copyright
> > > attached), why should OSI care?  The problem is that CC0 is still
> > > not OSI-approved (at least, it isn't on the list at
> > > Caution-Caution-https://opensource.org/licenses/alphabetical).  That
> > > means that the Government could be putting out works that are in
> > > some kind of zombie-like state, half-O

Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and the US Government

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

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of John Cowan
> Sent: Friday, September 01, 2017 1:22 PM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and 
> the US Government
> 
> 
> On Fri, Sep 1, 2017 at 10:44 AM, Karan, Cem F CIV USARMY RDECOM ARL (US) 
> <cem.f.karan@mail.mil < Caution-
> mailto:cem.f.karan@mail.mil > > wrote:
> 
> 
>   Wait... what??? You mean the copyright goes on until the next two world 
> wars occur? How do they define a world war?  What if
> we luck out and no world wars occur?
> 
> 
> 
> No, it's that the expiration of copyright was retroactively tolled by 
> specific French legislation (one for WWI, one for WWII) for the time
> that publication in France was under military censorship, preventing French 
> authors from fully exploiting their commercial rights.
> Presumably if France was occupied again, a similar law would be passed when 
> the occupation was lifted.  The status of these increases
> under the current life + 70 years regime is not very clear, since that added 
> 20 years and the maximum extension was only 15 years.
> 
> In addition, authors who are "mort pour la France" (either as soldiers or as 
> civilians killed in war) are granted an additional 30 years of
> copyright (thus life + 100) in compensation for whatever works they did not 
> get to create.  There are only about 35 creators in this
> position officially, but new ones could in principle be recognized at any 
> time.

OK, that makes a lot more sense.  Thanks!

> 
>   Just to double check, droit d’auteur is the equivalent of moral rights, 
> correct?
> 
> 
> 
> Yes, but it generally extends to all types of works.
> 
> --
> John Cowan  Caution-http://vrici.lojban.org/~cowan < 
> Caution-http://vrici.lojban.org/~cowan > co...@ccil.org < Caution-
> mailto:co...@ccil.org >
> Verbogeny is one of the pleasurettes of a creatific thinkerizer.
> --Peter da Silva



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Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and the US Government

[John Cowan]

On Fri, Sep 1, 2017 at 10:44 AM, Karan, Cem F CIV USARMY RDECOM ARL (US) <
cem.f.karan@mail.mil> wrote:

Wait... what??? You mean the copyright goes on until the next two world
> wars occur? How do they define a world war?  What if we luck out and no
> world wars occur?
>

No, it's that the expiration of copyright was retroactively tolled by
specific French legislation (one for WWI, one for WWII) for the time that
publication in France was under military censorship, preventing French
authors from fully exploiting their commercial rights.  Presumably if
France was occupied again, a similar law would be passed when the
occupation was lifted.  The status of these increases under the current
life + 70 years regime is not very clear, since that added 20 years and the
maximum extension was only 15 years.

In addition, authors who are "mort pour la France" (either as soldiers or
as civilians killed in war) are granted an additional 30 years of copyright
(thus life + 100) in compensation for whatever works they did not get to
create.  There are only about 35 creators in this position officially, but
new ones could in principle be recognized at any time.


> Just to double check, droit d’auteur is the equivalent of moral rights,
> correct?
>

Yes, but it generally extends to all types of works.

-- 
John Cowan  http://vrici.lojban.org/~cowanco...@ccil.org
Verbogeny is one of the pleasurettes of a creatific thinkerizer.
--Peter da Silva
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Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and the US Government

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

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Thorsten Glaser
> Sent: Friday, September 01, 2017 8:26 AM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and 
> the US Government
> 
> Karan, Cem F CIV USARMY RDECOM ARL (US) dixit:
> 
> >Does the EU define copyright and other IP rights for all member
> 
> Only guidelines that have to be implemented in national law.
> The various countries still differ, even in the duration of the protection 
> (France, for example, has an extra clause to extend protection of
> some works for the duration of the two world wars), but not much.

Wait... what??? You mean the copyright goes on until the next two world wars 
occur? How do they define a world war?  What if we luck out and no world wars 
occur?

> AIUI the UK copyright law is much closer to US law than to that of other EU 
> member countries which have a French/German- style droit d’auteur law.
> 
> bye,
> //mirabilo

Just to double check, droit d’auteur is the equivalent of moral rights, correct?

Thanks,
Cem Karan


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Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and the US Government

[Thorsten Glaser]

Karan, Cem F CIV USARMY RDECOM ARL (US) dixit:

>Does the EU define copyright and other IP rights for all member

Only guidelines that have to be implemented in national law.
The various countries still differ, even in the duration of
the protection (France, for example, has an extra clause to
extend protection of some works for the duration of the two
world wars), but not much.

AIUI the UK copyright law is much closer to US law than to
that of other EU member countries which have a French/German-
style droit d’auteur law.

bye,
//mirabilos
-- 
11:56⎜«liwakura:#!/bin/mksh» also, i wanted to add mksh to my own distro │
i was disappointed that there is no makefile │ but somehow the Build.sh is
the least painful built system i've ever seen │ honours CC, {CPP,C,LD}FLAGS
properly │ looks cleary like done by someone who knows what they are doing
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Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and the US Government

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

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Thorsten Glaser
> Sent: Thursday, August 31, 2017 3:50 PM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and 
> the US Government
> 
> 
> Hi list,
> 
> during this discussion I re-read CC0 and came to the conclusion that it does 
> not license the work itself but the right to act in the stead of
> the author (e.g. issue licences on it). That’s interesting and allows for a 
> _lot_ of possibilities.
>

What possibilities?

> 
> Of course…
> 
> >Making CC0 + a patent release officially OSI-approved would solve a lot
> >of
> 
> … the explicit patent exclusion remains a problem, as there is not only no 
> licence on the work saying one gets permission to use it but also
> an explicit exclusion of patents from the grant.
> 
> But this helps with e.g. the question of sublicensing (both in the EU and USA 
> sense which apparently, another thing I learnt yesternight,
> differ from each other) and the question of what exactly a derivative of a 
> CC0 work needs to be put under.

Does the EU define copyright and other IP rights for all member states?  That 
is, are the IP rights exactly the same between France and Germany simply 
because they are both a part of the EU?  When Brexit happens, what then?

> JFYI, IANAL, etc.
> //mirabilos



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Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and the US Government

[Thorsten Glaser]

Hi list,

during this discussion I re-read CC0 and came to the conclusion that
it does not license the work itself but the right to act in the stead
of the author (e.g. issue licences on it). That’s interesting and
allows for a _lot_ of possibilities.


Of course…

>Making CC0 + a patent release officially OSI-approved would solve a lot of

… the explicit patent exclusion remains a problem, as there is not
only no licence on the work saying one gets permission to use it
but also an explicit exclusion of patents from the grant.

But this helps with e.g. the question of sublicensing (both in the
EU and USA sense which apparently, another thing I learnt yesternight,
differ from each other) and the question of what exactly a derivative
of a CC0 work needs to be put under.

JFYI, IANAL, etc.
//mirabilos
-- 
I believe no one can invent an algorithm. One just happens to hit upon it
when God enlightens him. Or only God invents algorithms, we merely copy them.
If you don't believe in God, just consider God as Nature if you won't deny
existence.  -- Coywolf Qi Hunt
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Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and the US Government

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

We're doing something very close to, but not quite the same as what DDS is 
suggesting; we're stating that if a work (or portion of a work) does not have 
copyright attached within the US, then that work (or portion of a work) is 
licensed world-wide under CC0.  All other works are licensed under an 
OSI-approved license of some type.  To get a better sense of what I'm talking 
about, clone 
https://github.com/USArmyResearchLab/ARL-Open-Source-Guidance-and-Instructions 
and checkout the 'develop' branch.  The reason for doing it this way is to 
ensure that the license for a chunk of code remains the same regardless of 
where it is in the world; without that guarantee, users would have to know 
where they are to know if they are in compliance or not (under the DDS scheme, 
flying from the lower 48 states through Canada to Alaska would mean that code 
could go from being public domain, to copyrighted, to public domain 
midflight).

All that said, your second point is EXACTLY the kind of issues I'm worried 
about.  JOSS (http://joss.theoj.org/) is one journal that will only accept 
code under OSI-approved licenses.  There may be others as well, but I haven't 
done my homework on that.

In addition, there are projects (like Debian) that will only accept software 
that is Open Source.  In the case of Debian, I think that CC0 + a patent 
waiver would be sufficient (I haven't pushed this on the Debian lists, and I 
can't speak for the Debian project, it is just my personal belief that it 
would be OK), but I suspect that there are other projects where this isn't 
possible, and your code has to be under an OSI-approved license to be 
accepted.

Making CC0 + a patent release officially OSI-approved would solve a lot of 
problems.  If you want an example of what ARL is doing, clone 
https://github.com/USArmyResearchLab/ARL-Open-Source-Guidance-and-Instructions, 
checkout the 'develop' branch, and look at LICENSE.txt.  It is an example of 
where ARL is trying to go (note that the develop branch is not yet official 
policy, and won't be until and unless it goes through ARL's official channels, 
so take it as a possible direction we're going in).  I've combined CC0 and 
Apache 2.0, explained which portions of the code are under which license, and 
I've included the patent clause from the Apache license as a new clause 
overriding the CC0 patent clause.  That might be sufficient for OSI as well.

Thanks,
Cem Karan

PS, I'm actively (as in whenever I'm not typing out emails today) working on 
the develop branch, so depending on what time you clone it, you might see 
different stuff up there.

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Marc Jones
> Sent: Thursday, August 31, 2017 2:05 PM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and 
> the US Government
>
> Cem,
>
> Has your organization considered using the approach that the Defense Digital 
> Service is taking. It seems like their use of a INTENT file that
> clearly calls out the fact that the code written by federal employees as not 
> being subject to copyright would address the "copyfraud"
> concern.
>
> > Licensing Intent
> >
> > The intent is that this software and documentation ("Project") should be 
> > treated as if it is licensed under the license associated with the
> Project ("License") in the LICENSE.md file. However, because we are part of 
> the United States (U.S.) Federal Government, it is not that
> simple.
> >
> > The portions of this Project written by United States (U.S.) Federal 
> > government employees within the scope of their federal employment
> are ineligible for copyright protection in the U.S.; this is generally 
> understood to mean that these portions of the Project are placed in the
> public domain.
> >
> > In countries where copyright protection is available (which does not 
> > include the U.S.), contributions made by U.S. Federal government
> employees are released under the License. Merged contributions from private 
> contributors are released under the License.
> Caution-https://github.com/deptofdefense/code.mil/blob/master/Proposal/INTENT.md
>  
> < Caution-
> https://github.com/deptofdefense/code.mil/blob/master/Proposal/INTENT.md >
>
>
>
> In regards to the second issue, if I recall your organization has expressed 
> pretty strongly that they prefer to have a license approved by OSI
> before regarding it as "open source." I do not mean to rehash the argument 
> that OSI does not have any right to control the use of the
> phrase "open source." So I will leave that aside.
>
> But to take your concern seriously I did recently encounter a situation 
> where a clie

Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and the US Government

[Marc Jones]

Cem,

Has your organization considered using the approach that the Defense
Digital Service is taking. It seems like their use of a INTENT file that
clearly calls out the fact that the code written by federal employees as
not being subject to copyright would address the "copyfraud" concern.

> Licensing Intent
>
> The intent is that this software and documentation ("Project") should be
treated as if it is licensed under the license associated with the Project
("License") in the LICENSE.md file. However, because we are part of the
United States (U.S.) Federal Government, it is not that simple.
>
> The portions of this Project written by United States (U.S.) Federal
government employees within the scope of their federal employment are
ineligible for copyright protection in the U.S.; this is generally
understood to mean that these portions of the Project are placed in the
public domain.
>
> In countries where copyright protection is available (which does not
include the U.S.), contributions made by U.S. Federal government employees
are released under the License. Merged contributions from private
contributors are released under the License.
https://github.com/deptofdefense/code.mil/blob/master/Proposal/INTENT.md


In regards to the second issue, if I recall your organization has expressed
pretty strongly that they prefer to have a license approved by OSI before
regarding it as "open source." I do not mean to rehash the argument that
OSI does not have any right to control the use of the phrase "open source."
So I will leave that aside.

But to take your concern seriously I did recently encounter a situation
where a client's funding was dependent on releasing the software under a
"open source license as defined by the Open Source Initiative or as Free
Software as defined by the Free Software Foundation." Perhaps if your
organization is facing a similar situation and they are looking for a
external arbitrator of what counts as FOSS, they should consider looking at
other lists of FOSS licenses. Creative Commons  is listed as a "free
software" license by the Free Software Foundation. So in that situation if
they wanted to use CCO I would probably argue 1) you can use public domain
software in a "Open source" licensed under a OSI approved license, as DDS
is asserting. And 2) CC0 is considered "free software" by FSF.  (
https://www.gnu.org/licenses/license-list.html#CC0)

Not sure if reframing the issue in those terms is an option for your
organization.

-Marc

On Tue, Aug 29, 2017 at 4:45 PM Karan, Cem F CIV USARMY RDECOM ARL (US) <
cem.f.karan@mail.mil> wrote:

> > -Original Message-
> > From: License-discuss [mailto:license-discuss-boun...@opensource.org] On
> > Behalf Of Tzeng, Nigel H.
> > Sent: Tuesday, August 29, 2017 2:32 PM
> > To: license-discuss@opensource.org
> > Subject: Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud
> and
> > the US Government
> >
> > CC has to submit CC0 according to tradition/rules. For them to bother,
> since
> > they won't amend CC0 itself, probably there needs to be
> > some assurance it will at least get a vote at the next board meeting, if
> not
> > assurance it would pass.
> >
> > Neither seems likely.
> >
> > Easier to just to shrug their shoulders and ignore the whole OSI approval
> > thing.
>
> Well, that's a pain.  In that case, unless NOSA 2.0 gets approved, I
> suspect
> that at least some Government code is going to be zombie code, partly Open
> Source and partly CC0.
>
> Thanks,
> Cem Karan
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Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and the US Government

[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: Tuesday, August 29, 2017 2:32 PM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and 
> the US Government
>
> CC has to submit CC0 according to tradition/rules. For them to bother, since 
> they won't amend CC0 itself, probably there needs to be
> some assurance it will at least get a vote at the next board meeting, if not 
> assurance it would pass.
>
> Neither seems likely.
>
> Easier to just to shrug their shoulders and ignore the whole OSI approval 
> thing.

Well, that's a pain.  In that case, unless NOSA 2.0 gets approved, I suspect 
that at least some Government code is going to be zombie code, partly Open 
Source and partly CC0.

Thanks,
Cem Karan


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Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and the US Government

[Tzeng, Nigel H.]

CC has to submit CC0 according to tradition/rules. For them to bother, since 
they won't amend CC0 itself, probably there needs to be some assurance it will 
at least get a vote at the next board meeting, if not assurance it would pass.

Neither seems likely.

Easier to just to shrug their shoulders and ignore the whole OSI approval thing.

From: Karan, Cem F CIV USARMY RDECOM ARL (US) 
<cem.f.karan@mail.mil<mailto:cem.f.karan@mail.mil>>
Date: Tuesday, Aug 29, 2017, 11:25 AM
To: license-discuss@opensource.org 
<license-discuss@opensource.org<mailto:license-discuss@opensource.org>>
Subject: Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and the 
US Government

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On
> Behalf Of Tzeng, Nigel H.
> Sent: Tuesday, August 29, 2017 11:03 AM
> To: license-discuss@opensource.org
> Cc: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and
> the US Government
>
> I think that given that the USG is already saying that CC0 is a valid Open
> Source license for the purposes of open source release on
> Code.gov the CC0 train has already left the station without OSI approval.
>
> The FSF recommends it for public domain releases and states it is GPL
> compatible.
>
> CC states it is suitable for software when a public domain software release
> is desired.
>
> You guys can debate this all you like but it doesn't appear to me to matter
> much any more.

Thank you Nigel!  Given all that, can we PLEASE have a vote on approving CC0
as being Open Source, and add it to the approved list?

Thanks,
Cem Karan

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Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and the US Government

[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: Tuesday, August 29, 2017 11:03 AM
> To: license-discuss@opensource.org
> Cc: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and 
> the US Government
>
> I think that given that the USG is already saying that CC0 is a valid Open 
> Source license for the purposes of open source release on
> Code.gov the CC0 train has already left the station without OSI approval.
>
> The FSF recommends it for public domain releases and states it is GPL 
> compatible.
>
> CC states it is suitable for software when a public domain software release 
> is desired.
>
> You guys can debate this all you like but it doesn't appear to me to matter 
> much any more.

Thank you Nigel!  Given all that, can we PLEASE have a vote on approving CC0 
as being Open Source, and add it to the approved list?

Thanks,
Cem Karan



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Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and the US Government

[Stephen Michael Kellat]

I'm on active duty at Treasury until the close of business on Thursday, myself. 
 I wouldn't presume for either of us to lobby.  Filtering issues up the chain 
for The President to lobby The Congress about is the rule for the two of us in 
many cases.

The main problem I see in using licenses for USG-produced works is that the 
federal government is unlike most software producers.  If it doesn't like an 
aspect of copyright law, it can change it.  It can negotiate changes to the 
Berne Convention.  If it doesn't like a court decision, it can change the law.  
Most open source authors cannot directly do things like this regardless of how 
well drafted a license may become.

A consistent USG-wide policy is needed.  Using licenses rooted in copyright law 
doesn't seem right when applied to the government itself and is part of the 
continuing issues in finding an appropriate pre-existing license.  
Executive-Legislative action seems best to resolve pending questions.

Stephen Michael Kellat


On August 29, 2017 8:46:41 AM EDT, "Karan, Cem F CIV USARMY RDECOM ARL (US)" 
<cem.f.karan@mail.mil> wrote:
>Since I'm a Federal employee, and since putting together an Open Source
>policy 
>for the Army Research Laboratory is part of my job, I'm barred from
>directly 
>lobbying Congress on this matter [1-3].  ARL's legal counsel have also
>told me 
>that I'm not allowed to encourage or discourage anyone to lobby
>Congress on 
>behalf of ARL.  As an outside group, OSI can do what it feels like.
>
>Thanks,
>Cem Karan
>
>[1] https://ethics.od.nih.gov/topics/lobbying.htm
>[2] https://www.ethics.usda.gov/rules/guides/lobbying.htm
>[3] https://www.law.cornell.edu/uscode/text/18/1913
>
>> -Original Message-
>> From: Stephen Michael Kellat [mailto:smkel...@yahoo.com]
>> Sent: Monday, August 28, 2017 12:35 PM
>> To: license-discuss@opensource.org; Karan, Cem F CIV USARMY RDECOM
>ARL (US)
>> <cem.f.karan@mail.mil>; Richard Fontana
>> <font...@sharpeleven.org>
>> Cc: license-discuss@opensource.org
>> Subject: Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0,
>Copyfraud and
>> the US Government
>>
>> As bad as it sounds, would a brief statutory clarification be useful
>in this
>> instance? We can write around Congress all we want but getting
>> them to fix this to be public domain globally is best done by
>amending the
>> law. A small rider proposed through channels per the
>> Recommendations Clause in Article II, Section 3 of the federal
>constitution
>> would work nicely.
>>
>> Stephen Michael Kellat
>>
>>
>>
>> On August 28, 2017 11:59:44 AM EDT, "Karan, Cem F CIV USARMY RDECOM
>ARL
>> (US)" <cem.f.karan@mail.mil> wrote:
>>
>>
>>
>>   -Original Message-
>>   From: Richard Fontana [Caution-mailto:font...@sharpeleven.org]
>>   Sent: Monday, August 28, 2017 11:39 AM
>>   To: Karan, Cem F CIV USARMY RDECOM ARL (US)
><cem.f.karan@mail.mil>
>>   Cc: license-discuss@opensource.org
>>   Subject: [Non-DoD Source] Re: NOSA 2.0, Copyfraud and the US
>Government
>>
>>   On Mon, Aug 28, 2017 at 02:18:10PM +, Karan, Cem F CIV 
>> USARMY
>RDECOM
>> ARL
>>   (US) wrote:
>>
>>   Hi all, as you know I've been pushing the position 
>> that the US
>>   Government may have problems using copyright-based 
>> licenses on
>works
>>   that do not have copyright attached.  One of the 
>> lawyers I've
>been
>>   working on this with has been kind enough to dig up 
>> the exact
>statutes
>>   and give some clearer legal reasoning on what the 
>> issues are.  It
>>   basically boils down to two issues; first, there is 
>> question of
>>   severability
>>   
>> (Caution-Caution-https://en.wikipedia.org/wiki/Severability <
>> Caution-https://en.wikipedia.org/wiki/Severability
>> > ) which I've
>>   touched on before, and the second has to do with 
>> copyfraud
>>   
>> (Caution-Caution-https://en.wikipedia.org/wiki/Copyfraud <
>> Caution-https://en.wikipedia.org/wiki/Copyfraud >
>> ).
>>   Copyfraud is defined within 17 U.S.C. 506, section (c)
>>
>>
>(Caution-Caution-https://www.gpo.gov/fdsys/pkg/USCODE-2010-title17/html/USCODE-2010-title17-chap5-
>> sec506.htm <
>>
&

Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and the US Government

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

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Chris Travers
> Sent: Tuesday, August 29, 2017 9:14 AM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and 
> the US Government
> 
> On Tue, Aug 29, 2017 at 2:59 PM, Karan, Cem F CIV USARMY RDECOM ARL
> (US) <cem.f.karan@mail.mil> wrote:
> >> -Original Message-
> >> From: License-discuss
> >> [Caution-mailto:license-discuss-boun...@opensource.org] On Behalf Of
> >> Thorsten Glaser
> >> Sent: Monday, August 28, 2017 4:33 PM
> >> To: Stephen Michael Kellat <smkel...@yahoo.com>
> >> Cc: license-discuss@opensource.org
> >> Subject: Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0,
> >> Copyfraud and the US Government
> >>
> >> Stephen Michael Kellat dixit:
> >>
> >> >them to fix this to be public domain globally is best done by
> >> >amending
> >>
> >> There’s no such thing as voluntarily releasing a work into the Public
> >> Domain in several countries of the world, so this is futile at best, worse 
> >> hamful.
> >>
> >>
> >> Karan, Cem F CIV USARMY RDECOM ARL (US) dixit:
> >>
> >> >> So, in the end, “we” need a copyright licence “period”.
> >> >
> >> >Not exactly.  This is where CC0 comes into play, at least here at
> >> >the
> >>
> >> Yes, that’d be a way to express the same thing *if* CC0 were
> >> sublicenseable. It currently sorta works, but…
> >>
> >> >even if the work could have copyright attached in Germany, people
> >> >there know that the work is under CC0. This covers the really hard
> >> >question of a US Government work being exported to Germany,
> >> >modified, and then re-exported back to the US. The goal (at least at
> >> >ARL) is to
> >>
> >> … this could be tricky.
> >>
> >> If it were sublicenseable, the thing exported back to the USA could
> >> be fully under a proper copyright licence as the work of the person who 
> >> created the modified work (assuming it passes threshold of
> originality, of course).
> >>
> >> But I’m assuming it’d also work with just CC0, except CC themselves
> >> asked for it to not be certified as Open Source due to problems with it (I 
> >> don’t know which ones exactly).
> >>
> >> >make sure that everyone world-wide knows what the terms are, and
> >> >that they are the same regardless of where you live, and where you
> >> >are
> >>
> >> This is never true.
> >>
> >> Under the Berne Convention, a work from country A is, in country B,
> >> subject to the same protection as a work from country B. That means for a 
> >> work originating in the USA, in Germany, only(!) German
> copy‐ right law applies. In France, only French law, etc.
> >>
> >> I kinda like Richard Fontana’s approach to state a proper Open Source 
> >> licence for where copyright law applies.
> >
> > I see your point, but CC0 is an attempt to even out the use cases as far 
> > possible.  Basically, a person in Germany should not have to
> wonder if they'll be sued for using a US Government work that is in the 
> public domain in the US.  CC0 answers that question as far as it is
> possible given the various jurisdictions around the world.
> 
> What about jurisdictions where moral rights cannot be legally waived?

Not really a concern; the issue is whether or not others can feel safe using 
some code that is under CC0.  Even if you have moral rights to the code, if you 
put it under CC0, then I know I have the right to use it.

Thanks,
Cem Karan



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Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and the US Government

[Tzeng, Nigel H.]

I think that given that the USG is already saying that CC0 is a valid Open 
Source license for the purposes of open source release on Code.gov the CC0 
train has already left the station without OSI approval.

The FSF recommends it for public domain releases and states it is GPL 
compatible.

CC states it is suitable for software when a public domain software release is 
desired.

You guys can debate this all you like but it doesn't appear to me to matter 
much any more.


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Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and the US Government

[Chris Travers]

On Tue, Aug 29, 2017 at 2:59 PM, Karan, Cem F CIV USARMY RDECOM ARL
(US) <cem.f.karan@mail.mil> wrote:
>> -Original Message-
>> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
>> Behalf Of Thorsten Glaser
>> Sent: Monday, August 28, 2017 4:33 PM
>> To: Stephen Michael Kellat <smkel...@yahoo.com>
>> Cc: license-discuss@opensource.org
>> Subject: Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and 
>> the US Government
>>
>> Stephen Michael Kellat dixit:
>>
>> >them to fix this to be public domain globally is best done by amending
>>
>> There’s no such thing as voluntarily releasing a work into the Public Domain 
>> in several countries of the world, so this is futile at best,
>> worse hamful.
>>
>>
>> Karan, Cem F CIV USARMY RDECOM ARL (US) dixit:
>>
>> >> So, in the end, “we” need a copyright licence “period”.
>> >
>> >Not exactly.  This is where CC0 comes into play, at least here at the
>>
>> Yes, that’d be a way to express the same thing *if* CC0 were sublicenseable. 
>> It currently sorta works, but…
>>
>> >even if the work could have copyright attached in Germany, people there
>> >know that the work is under CC0. This covers the really hard question
>> >of a US Government work being exported to Germany, modified, and then
>> >re-exported back to the US. The goal (at least at ARL) is to
>>
>> … this could be tricky.
>>
>> If it were sublicenseable, the thing exported back to the USA could be fully 
>> under a proper copyright licence as the work of the person
>> who created the modified work (assuming it passes threshold of originality, 
>> of course).
>>
>> But I’m assuming it’d also work with just CC0, except CC themselves asked 
>> for it to not be certified as Open Source due to problems with
>> it (I don’t know which ones exactly).
>>
>> >make sure that everyone world-wide knows what the terms are, and that
>> >they are the same regardless of where you live, and where you are
>>
>> This is never true.
>>
>> Under the Berne Convention, a work from country A is, in country B, subject 
>> to the same protection as a work from country B. That means
>> for a work originating in the USA, in Germany, only(!) German copy‐ right 
>> law applies. In France, only French law, etc.
>>
>> I kinda like Richard Fontana’s approach to state a proper Open Source 
>> licence for where copyright law applies.
>
> I see your point, but CC0 is an attempt to even out the use cases as far 
> possible.  Basically, a person in Germany should not have to wonder if 
> they'll be sued for using a US Government work that is in the public domain 
> in the US.  CC0 answers that question as far as it is possible given the 
> various jurisdictions around the world.

What about jurisdictions where moral rights cannot be legally waived?
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Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and the US Government

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

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Thorsten Glaser
> Sent: Monday, August 28, 2017 4:33 PM
> To: Stephen Michael Kellat <smkel...@yahoo.com>
> Cc: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and 
> the US Government
> 
> Stephen Michael Kellat dixit:
> 
> >them to fix this to be public domain globally is best done by amending
> 
> There’s no such thing as voluntarily releasing a work into the Public Domain 
> in several countries of the world, so this is futile at best,
> worse hamful.
> 
> 
> Karan, Cem F CIV USARMY RDECOM ARL (US) dixit:
> 
> >> So, in the end, “we” need a copyright licence “period”.
> >
> >Not exactly.  This is where CC0 comes into play, at least here at the
> 
> Yes, that’d be a way to express the same thing *if* CC0 were sublicenseable. 
> It currently sorta works, but…
> 
> >even if the work could have copyright attached in Germany, people there
> >know that the work is under CC0. This covers the really hard question
> >of a US Government work being exported to Germany, modified, and then
> >re-exported back to the US. The goal (at least at ARL) is to
> 
> … this could be tricky.
> 
> If it were sublicenseable, the thing exported back to the USA could be fully 
> under a proper copyright licence as the work of the person
> who created the modified work (assuming it passes threshold of originality, 
> of course).
> 
> But I’m assuming it’d also work with just CC0, except CC themselves asked for 
> it to not be certified as Open Source due to problems with
> it (I don’t know which ones exactly).
> 
> >make sure that everyone world-wide knows what the terms are, and that
> >they are the same regardless of where you live, and where you are
> 
> This is never true.
> 
> Under the Berne Convention, a work from country A is, in country B, subject 
> to the same protection as a work from country B. That means
> for a work originating in the USA, in Germany, only(!) German copy‐ right law 
> applies. In France, only French law, etc.
> 
> I kinda like Richard Fontana’s approach to state a proper Open Source licence 
> for where copyright law applies.

I see your point, but CC0 is an attempt to even out the use cases as far 
possible.  Basically, a person in Germany should not have to wonder if they'll 
be sued for using a US Government work that is in the public domain in the US.  
CC0 answers that question as far as it is possible given the various 
jurisdictions around the world.

Thanks,
Cem Karan



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Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and the US Government

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

Since I'm a Federal employee, and since putting together an Open Source policy 
for the Army Research Laboratory is part of my job, I'm barred from directly 
lobbying Congress on this matter [1-3].  ARL's legal counsel have also told me 
that I'm not allowed to encourage or discourage anyone to lobby Congress on 
behalf of ARL.  As an outside group, OSI can do what it feels like.

Thanks,
Cem Karan

[1] https://ethics.od.nih.gov/topics/lobbying.htm
[2] https://www.ethics.usda.gov/rules/guides/lobbying.htm
[3] https://www.law.cornell.edu/uscode/text/18/1913

> -Original Message-
> From: Stephen Michael Kellat [mailto:smkel...@yahoo.com]
> Sent: Monday, August 28, 2017 12:35 PM
> To: license-discuss@opensource.org; Karan, Cem F CIV USARMY RDECOM ARL (US)
> <cem.f.karan@mail.mil>; Richard Fontana
> <font...@sharpeleven.org>
> Cc: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and
> the US Government
>
> As bad as it sounds, would a brief statutory clarification be useful in this
> instance? We can write around Congress all we want but getting
> them to fix this to be public domain globally is best done by amending the
> law. A small rider proposed through channels per the
> Recommendations Clause in Article II, Section 3 of the federal constitution
> would work nicely.
>
> Stephen Michael Kellat
>
>
>
> On August 28, 2017 11:59:44 AM EDT, "Karan, Cem F CIV USARMY RDECOM ARL
> (US)" <cem.f.karan@mail.mil> wrote:
>
>
>
>-Original Message-
>From: Richard Fontana [Caution-mailto:font...@sharpeleven.org]
>Sent: Monday, August 28, 2017 11:39 AM
>To: Karan, Cem F CIV USARMY RDECOM ARL (US) 
> <cem.f.karan@mail.mil>
>Cc: license-discuss@opensource.org
>Subject: [Non-DoD Source] Re: NOSA 2.0, Copyfraud and the US 
> Government
>
>On Mon, Aug 28, 2017 at 02:18:10PM +, Karan, Cem F CIV 
> USARMY RDECOM
> ARL
>(US) wrote:
>
>Hi all, as you know I've been pushing the position 
> that the US
>Government may have problems using copyright-based 
> licenses on works
>that do not have copyright attached.  One of the 
> lawyers I've been
>working on this with has been kind enough to dig up 
> the exact statutes
>and give some clearer legal reasoning on what the 
> issues are.  It
>basically boils down to two issues; first, there is 
> question of
>severability
>
> (Caution-Caution-https://en.wikipedia.org/wiki/Severability <
> Caution-https://en.wikipedia.org/wiki/Severability
> > ) which I've
>touched on before, and the second has to do with 
> copyfraud
>
> (Caution-Caution-https://en.wikipedia.org/wiki/Copyfraud <
> Caution-https://en.wikipedia.org/wiki/Copyfraud >
> ).
>Copyfraud is defined within 17 U.S.C. 506, section (c)
>
> (Caution-Caution-https://www.gpo.gov/fdsys/pkg/USCODE-2010-title17/html/USCODE-2010-title17-chap5-
> sec506.htm <
> Caution-https://www.gpo.gov/fdsys/pkg/USCODE-2010-title17/html/USCODE-2010-title17-chap5-sec506.htm
>  > ).
>I've copied out the relevant language below; the 
> commentary within the
>brackets is from ARL's lawyer:
>
>"""
>(c) Fraudulent Copyright Notice.-
>Any person who, with fraudulent intent, places on any 
> article a notice
>of copyright or words of the same purport that such 
> person knows to be
>false, or who, with fraudulent intent, publicly 
> distributes or imports
>for public distribution any article bearing such 
> notice or words that
>such person knows to be false, shall be fined not more 
> than $2,500.
>[Note - Any software pushed out under Open Source 
> would not have a
>notice of copyright affixed to the software. However, 
> would software
>pushed out under an Open Source license that assumes 
> the existence of
>copyright be considered tantamount to a notice of 
> copyright and
>therefore an actionable fraud under this section?  
> Don't know.] """
>
>I know that there we

Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and the US Government

[Thorsten Glaser]

John Cowan dixit:

>Also under the Berne convention, country B may (but is not required to)
>treat a work that is out of copyright in its originating country as out of
>copyright
>in country B as well.

OK, but, as you said yourself…

>The U.S. does not exercise this option, and the
>EU countries are effectively forbidden to do so by EU case law.

… this is irrelevant here. Nevertheless, thanks for the correction.

bye,
//mirabilos
-- 
Stéphane, I actually don’t block Googlemail, they’re just too utterly
stupid to successfully deliver to me (or anyone else using Greylisting
and not whitelisting their ranges). Same for a few other providers such
as Hotmail. Some spammers (Yahoo) I do block.
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Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and the US Government

[John Cowan]

On Mon, Aug 28, 2017 at 4:32 PM, Thorsten Glaser  scripsit:

Under the Berne Convention, a work from country A is, in country B,
> subject to the same protection as a work from country B. That means
> for a work originating in the USA, in Germany, only(!) German copy‐
> right law applies. In France, only French law, etc.
>

Up to a point, Minister.

Also under the Berne convention, country B may (but is not required to)
treat a work that is out of copyright in its originating country as out of
copyright
in country B as well.  The U.S. does not exercise this option, and the
EU countries are effectively forbidden to do so by EU case law.

-- 
John Cowan  http://vrici.lojban.org/~cowanco...@ccil.org
But the next day there came no dawn, and the Grey Company passed on
into the darkness of the Storm of Mordor and were lost to mortal sight;
but the Dead followed them.  --"The Passing of the Grey Company"
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Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and the US Government

[Thorsten Glaser]

Stephen Michael Kellat dixit:

>them to fix this to be public domain globally is best done by amending

There’s no such thing as voluntarily releasing a work into
the Public Domain in several countries of the world, so this
is futile at best, worse hamful.


Karan, Cem F CIV USARMY RDECOM ARL (US) dixit:

>> So, in the end, “we” need a copyright licence “period”.
>
>Not exactly.  This is where CC0 comes into play, at least here at the

Yes, that’d be a way to express the same thing *if* CC0 were
sublicenseable. It currently sorta works, but…

>even if the work could have copyright attached in Germany, people
>there know that the work is under CC0. This covers the really hard
>question of a US Government work being exported to Germany, modified,
>and then re-exported back to the US. The goal (at least at ARL) is to

… this could be tricky.

If it were sublicenseable, the thing exported back to the USA
could be fully under a proper copyright licence as the work of
the person who created the modified work (assuming it passes
threshold of originality, of course).

But I’m assuming it’d also work with just CC0, except CC themselves
asked for it to not be certified as Open Source due to problems
with it (I don’t know which ones exactly).

>make sure that everyone world-wide knows what the terms are, and that
>they are the same regardless of where you live, and where you are

This is never true.

Under the Berne Convention, a work from country A is, in country B,
subject to the same protection as a work from country B. That means
for a work originating in the USA, in Germany, only(!) German copy‐
right law applies. In France, only French law, etc.

I kinda like Richard Fontana’s approach to state a proper Open Source
licence for where copyright law applies.

bye,
//mirabilos
-- 
11:56⎜«liwakura:#!/bin/mksh» also, i wanted to add mksh to my own distro │
i was disappointed that there is no makefile │ but somehow the Build.sh is
the least painful built system i've ever seen │ honours CC, {CPP,C,LD}FLAGS
properly │ looks cleary like done by someone who knows what they are doing
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Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and the US Government

[Christopher Sean Morrison]

> On Aug 28, 2017, at 12:34 PM, Stephen Michael Kellat  
> wrote:
> 
> As bad as it sounds, would a brief statutory clarification be useful in this 
> instance? We can write around Congress all we want but getting them to fix 
> this to be public domain globally is best done by amending the law. A small 
> rider proposed through channels per the Recommendations Clause in Article II, 
> Section 3 of the federal constitution would work nicely.

It would likely take a handful of folks just to figure out exactly what clause 
is unclear or what position is being changed.

Given the USG currently asserts copyright internationally, such an amendment 
would probably receive considerable resistance, but let’s assume it passes.  If 
Title 17 were changed to say no copyright protection internationally, that 
could clear up the issue in Article 18 of the Berne Convention — there would be 
expiry internationally in the country of origin, thus public domain 
internationally.  On the other end of the spectrum, Title 17 could be changed 
to remove the exemption of USG works, the implications there would be utterly 
HUGE, but would allow the USG to use any license.  Somewhere in the middle, 
Title 17 could explain the effect of putting “Copyright US Government” on a 
pure work of the USG, whether that constitutes fraud or invalidate protections 
or that it always only applies internationally.

There was discussion last year about having (official) public discourse on the 
Federal Register regarding the new Federal Open Source Policy and these exact 
issues.  That would probably be a better starting point.  The Open Source 
community could strategize for months, only to be shot down by a single 
influential DoD contractor citing market interference or harm by the USG.

Cheers!
Sean


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Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and the US Government

[Stephen Michael Kellat]

As bad as it sounds, would a brief statutory clarification be useful in this 
instance?  We can write around Congress all we want but getting them to fix 
this to be public domain globally is best done by amending the law.  A small 
rider proposed through channels per the Recommendations Clause in Article II, 
Section 3 of the federal constitution would work nicely.

Stephen Michael Kellat


On August 28, 2017 11:59:44 AM EDT, "Karan, Cem F CIV USARMY RDECOM ARL (US)" 
 wrote:
>> -Original Message-
>> From: Richard Fontana [mailto:font...@sharpeleven.org]
>> Sent: Monday, August 28, 2017 11:39 AM
>> To: Karan, Cem F CIV USARMY RDECOM ARL (US)
>
>> Cc: license-discuss@opensource.org
>> Subject: [Non-DoD Source] Re: NOSA 2.0, Copyfraud and the US
>Government
>>
>> On Mon, Aug 28, 2017 at 02:18:10PM +, Karan, Cem F CIV USARMY
>RDECOM ARL 
>> (US) wrote:
>> > Hi all, as you know I've been pushing the position that the US
>> > Government may have problems using copyright-based licenses on
>works
>> > that do not have copyright attached.  One of the lawyers I've been
>> > working on this with has been kind enough to dig up the exact
>statutes
>> > and give some clearer legal reasoning on what the issues are.  It
>> > basically boils down to two issues; first, there is question of
>> > severability
>> > (Caution-https://en.wikipedia.org/wiki/Severability) which I've
>> > touched on before, and the second has to do with copyfraud 
>> > (Caution-https://en.wikipedia.org/wiki/Copyfraud).
>> > Copyfraud is defined within 17 U.S.C. 506, section (c)
>> >
>(Caution-https://www.gpo.gov/fdsys/pkg/USCODE-2010-title17/html/USCODE-2010-title17-chap5-sec506.htm).
>> > I've copied out the relevant language below; the commentary within
>the
>> > brackets is from ARL's lawyer:
>> >
>> > """
>> > (c) Fraudulent Copyright Notice.-
>> > Any person who, with fraudulent intent, places on any article a
>notice
>> > of copyright or words of the same purport that such person knows to
>be
>> > false, or who, with fraudulent intent, publicly distributes or
>imports
>> > for public distribution any article bearing such notice or words
>that
>> > such person knows to be false, shall be fined not more than $2,500.
>> > [Note - Any software pushed out under Open Source would not have a
>> > notice of copyright affixed to the software. However, would
>software
>> > pushed out under an Open Source license that assumes the existence
>of
>> > copyright be considered tantamount to a notice of copyright and
>> > therefore an actionable fraud under this section?  Don't know.] """
>> >
>> > I know that there were questions at one time about the need for
>> > special licenses/agreements like NOSA 2.0, but this is one of those
>> > potential problems.  Copyright-based licenses are great for works
>that
>> > have copyright attached, but they may be problematic for works that
>> > don't have copyright attached.
>>
>> As has been pointed out before, I think, in software (including but
>not 
>> limited to open source) copyright notices are commonly juxtaposed
>> with material that is clearly or likely not subject to copyright.
>>
>> Anyway, the theoretical risk here could be eliminated in lots of
>ways, it 
>> seems to me (even without getting into what would be required to
>> show 'fraudulent intent'). For example, the US government could
>include a 
>> copyright and license notice like the following:
>>
>>   The following material may not be subject to copyright in the
>United
>>   States under 17 U.S.C. 105. To the extent it is subject to
>>   copyright, it is released under the following open source license:
>[...]
>>
>> There's also the approach that is seen in 
>>
>Caution-https://github.com/deptofdefense/code.mil/blob/master/Proposal/INTENT.md.
>>
>> > So, given that we had come up with the idea of using two licenses
>in
>> > projects
>> > (CC0 for portions of a work that don't have copyright, and an
>> > OSI-approved license for portions of a work that do have copyright
>> > attached), why should OSI care?  The problem is that CC0 is still
>not
>> > OSI-approved (at least, it isn't on the list at
>> > Caution-https://opensource.org/licenses/alphabetical).  That means
>> > that the Government could be putting out works that are in some
>kind
>> > of zombie-like state, half-Open Source, and half not.  If OSI
>approved
>> > CC0 as being an Open Source license, or if NOSA 2.0 was approved,
>then the 
>> > problems could be fixed.  So, where are we in either case?
>>
>> As I've pointed out before, CC0 itself does not eliminate the problem
>your 
>> colleagues say they are concerned about, because CC0 assumes
>> copyright ownership. If they sincerely think it's dangerous to use
>the MIT 
>> license then they should be consistent and say it's dangerous to
>> use CC0 too.
>>
>> I think the use you are suggesting for use of CC0 is not actually how
>> CC0 is meant to be used. CC0 is designed 

Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and the US Government

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

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

I see what you're saying, and I understand how it may appear ceremonial, but 
there is an added wrinkle of copyright in non-US 

Re: [License-discuss] [Non-DoD Source] Re: NOSA 2.0, Copyfraud and the US Government

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

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Thorsten Glaser
> Sent: Monday, August 28, 2017 10:32 AM
> To: license-discuss@opensource.org
> Subject: [Non-DoD Source] Re: [License-discuss] NOSA 2.0, Copyfraud and the 
> US Government
> 
> Karan, Cem F CIV USARMY RDECOM ARL (US) dixit:
> 
> >Hi all, as you know I've been pushing the position that the US
> >Government may have problems using copyright-based licenses on works
> >that do not have copyright attached.  One of the lawyers I've been
> >working on this with has
> 
> How is their position if the works are in the Public Domain only in the USA? 
> Their own copyright FAQ says that even US government work
> may be copyright-protected e.g. in Germany.
> 
> So, in the end, “we” need a copyright licence “period”.

Not exactly.  This is where CC0 comes into play, at least here at the US Army 
Research Laboratory (ARL), and I hope in other parts of the US Government too.  
If the work doesn't have copyright attached within the US, it is licensed under 
CC0, which is a **world-wide** license.  Thus, even if the work could have 
copyright attached in Germany, people there know that the work is under CC0.  
This covers the really hard question of a US Government work being exported to 
Germany, modified, and then re-exported back to the US.  The goal (at least at 
ARL) is to make sure that everyone world-wide knows what the terms are, and 
that they are the same regardless of where you live, and where you are 
exporting your modifications to.

Does that make sense?

Thanks,
Cem Karan


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