Re: For Approval: NASA Open Source Agreement Version 1.1
On Fri, Feb 13, 2004 at 03:27:52PM -0500, [EMAIL PROTECTED] wrote: So Americans can ignore the civil-servant version of the NOSA license with impunity, but not so Australians. Depends. If there are patent rights then no. NOSA covers more than just copyrights. I don't believe there's a restriction on patent ownership by the US Government. -- Ben Reser [EMAIL PROTECTED] http://ben.reser.org Conscience is the inner voice which warns us somebody may be looking. - H.L. Mencken -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
Brian Behlendorf scripsit: So what happens when I download the code under a FOIA/public domain issue, and then relicense under a BSD license? Don't I have the right to relicense PD works? You can do anything you want to with a public domain work except try to assert a valid copyright on it, which is one of the incidents of the BSD or any other open-source license. So, no. -- John Cowan [EMAIL PROTECTED] www.reutershealth.com www.ccil.org/~cowan You cannot enter here. Go back to the abyss prepared for you! Go back! Fall into the nothingness that awaits you and your Master. Go! --Gandalf -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
On Tue, 17 Feb 2004 [EMAIL PROTECTED] wrote: Brian Behlendorf scripsit: So what happens when I download the code under a FOIA/public domain issue, and then relicense under a BSD license? Don't I have the right to relicense PD works? You can do anything you want to with a public domain work except try to assert a valid copyright on it, which is one of the incidents of the BSD or any other open-source license. So, no. So I have no right to create a derivative work of a public domain work and release that derivative work under a license of my choice? For example, I can not take PD code and incorporate it into Apache httpd? I must misunderstand what public domain means, then. Brian -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
Brian Behlendorf wrote: On Tue, 17 Feb 2004 [EMAIL PROTECTED] wrote: Brian Behlendorf scripsit: So what happens when I download the code under a FOIA/public domain issue, and then relicense under a BSD license? Don't I have the right to relicense PD works? You can do anything you want to with a public domain work except try to assert a valid copyright on it, which is one of the incidents of the BSD or any other open-source license. So, no. So I have no right to create a derivative work of a public domain work and release that derivative work under a license of my choice? Sure you can. It's just that you can't claim a copyright to the original public domain work itself. You seemed to suggest doing that (rather than creating a derivative work) above when you said downloading public domain code and relicensing it under BSD. The interesting question is whether I can then take your BSD'ed work and extract the public domain parts. It seems logical I should be able to do that, but there have been lots of lawsuits about restored versions of PD works and whether the result is copyright-protected. Arnoud -- Arnoud Engelfriet, Dutch patent attorney - Speaking only for myself Patents, copyright and IPR explained for techies: http://www.iusmentis.com/ -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
Brian Behlendorf scripsit: So I have no right to create a derivative work of a public domain work and release that derivative work under a license of my choice? For example, I can not take PD code and incorporate it into Apache httpd? I must misunderstand what public domain means, then. Oh yes, you can do that. But the derivative work must be genuinely a derivative work, and not just a minor touch-up of the public-domain original. -- They tried to pierce your heartJohn Cowan with a Morgul-knife that remains in the http://www.ccil.org/~cowan wound. If they had succeeded, you wouldhttp://www.reutershealth.com become a wraith under the domination of the Dark Lord. --Gandalf -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: For Approval: NASA Open Source Agreement Version 1.1
You can do anything you want to with a public domain work except try to assert a valid copyright on it, which is one of the incidents of the BSD or any other open-source license. So, no. So I have no right to create a derivative work of a public domain work and release that derivative work under a license of my choice? For example, I can not take PD code and incorporate it into Apache httpd? I must misunderstand what public domain means, then. What does the word it mean? :-) I think there is a confusion of antecedent basis here. In the original sentence, John suggested that nobody can assert a copyright on a public domain work. True. Its copyright has presumably expired (or perhaps it is a US Government work in the United States). It reqires no license at all to distribute a public domain work. Brian is also right. Anybody can create a derivative work of a public domain work and distribute that derivative work under the Apache or any other license. /Larry Rosen -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
RE: For Approval: NASA Open Source Agreement Version 1.1
So I have no right to create a derivative work of a public domain work and release that derivative work under a license of my choice? For example, I can not take PD code and incorporate it into Apache httpd? I must misunderstand what public domain means, then. Oh yes, you can do that. But the derivative work must be genuinely a derivative work, and not just a minor touch-up of the public-domain original. I don't think so, John. Anyone can do ANYTHING to a public domain work. No license is required, whether it is to do plastic surgery or simply to put on lipstick. If anything, the proper question is whether the degree of creativity in the derivative work is sufficient to actually create a new copyrightable work. If not, that so-called derivative work will be an uncopyrightable public domain work too. /Larry Rosen -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
Lawrence E. Rosen scripsit: I don't think so, John. Anyone can do ANYTHING to a public domain work. No license is required, whether it is to do plastic surgery or simply to put on lipstick. If anything, the proper question is whether the degree of creativity in the derivative work is sufficient to actually create a new copyrightable work. If not, that so-called derivative work will be an uncopyrightable public domain work too. I agree that that is the issue, though your wording is better than mine. Brian can't just take an arbitrary piece of public domain software (for concreteness, let us take the TZ library, whose author is one Arthur David Olson, a U.S. government employee) and slap a Copyright 2004 Brian Behlendorf on it: that would be fraudulent, though admittedly it's not clear to me who would have standing to sue. He could, however, do what the FSF has done: create a derivative work like GNU libc, which incorporates code originally written by Olson, and put his own copyright and license on that. -- You know, you haven't stopped talking John Cowan since I came here. You must have been http://www.reutershealth.com vaccinated with a phonograph needle. [EMAIL PROTECTED] --Rufus T. Firefly http://www.ccil.org/~cowan -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
Alex Rousskov writes: - If NASA wants to kindly ask users to register, license is not the right place to do that. NASA should change the license before OSI approves it (a simple quality control issue) On the other hand, if NASA wants to require redistributors to kindly ask users to register, the license is the right place to do that. Consider that the GPL REQUIRES that an interactive startup of a program print out a certain bit of text. You cannot remove that code from the program without violating the GPL. NASA isn't requiring any fixed bits of code that cannot be changed. Requiring redistributors to ask is not unreasonable, and doesn't violate any part of the OSD that I can see. -- --My blog is at angry-economist.russnelson.com | Coding in Python Crynwr sells support for free software | PGPok | is like 521 Pleasant Valley Rd. | +1 315 268 1925 voice | sucking on sugar. Potsdam, NY 13676-3213 | +1 315 268 9201 FAX | Sweet! -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
On Mon, 16 Feb 2004, Russell Nelson wrote: Alex Rousskov writes: - If NASA wants to kindly ask users to register, license is not the right place to do that. NASA should change the license before OSI approves it (a simple quality control issue) On the other hand, if NASA wants to require redistributors to kindly ask users to register, the license is the right place to do that. Agreed. For cases where NASA wants to _require_ something, see the other bullet in my original e-mail. I believe it applies just fine in the above case. Alex. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
On Fri, 13 Feb 2004, Richard Schilling wrote: I believe that is a misguided concept in open source licensing that some hold to. Tracking the use of a product does not make a license non-open source. Open Source licensing deals with accessibility and cost, but tracking, per se, is not even relevant to that characteristic. In fact, tracking the uses of open source is a *key* marketing tool and the only way we can judge if an investment of time into open source is paying off, is it not? Are you deliberately trying to open a can-of-worms here, or do you really not understand the problem? Back in 1998 there was a claim that Open Source was intended to be a marketing term for Free Software. Since that time there have been many attempts to make it into something extremely different such that it was no longer a marketing term for the freedom to run, copy, distribute, study, change and improve the software. In order for these to be freedoms it should be obvious that these things be able to be done without additional fee and for citizens to do so anonymously. Whether a critical feature of the Free/Libre and Open Source Software movement runs contrary to the marketing goal of a specific organization is largely irrelevant. As soon as you track software is it no longer FLOSS, and I would hate to see the OSI change the definition of Open Source to the level that I could no longer trust its endorsement of any license. The value of the OSI to the community would effectively be gone at that point. Please don't push this can of worms into this conference any further than it is already there. The OSI has a very good definition to match against licensing currently, and I would hope that the OSI would not erode them to the level you suggest. Your suggestions that the lawyers at NASA would know better than OSI how to meet the goals of Open Source is entirely backwards. --- Russell McOrmond, Internet Consultant: http://www.flora.ca/ Perspective of a digital copyright reformer on Sheila Copps, MP. http://www.flora.ca/russell/drafts/copps-ndp.html Discuss at: http://www.lulu.com/forums/viewtopic.php?t=2757 -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
On 2004.02.12 20:42 Ian Lance Taylor wrote: Richard Schilling [EMAIL PROTECTED] writes: Such provisions are not allowed in an open source license. Reporting requirements are viewed as unreasonable limitations on the rights of licensees to do anything they want internally with open source Biggest problem of all here - who in all of creation has the authority on blessing open source licenses? Huh? The point of this mailing list is to advise OSI on blessing open source licenses. You don't have to believe that OSI's blessing has any value. But there isn't much point to joining this mailing list if you reject the whole concept of OSI blessing a license. I'm just saying that a stance that NASA, a US government agency with deep pockets, should remove imdenification wording is a haneous idea. And in general bashing the license on non-licensing issues doesn't do any good. It actually hurts open source license development. It's just my opinion. The OSI can do what it wants. My preference is to see all discussions the OSI endorses regarding licenses be done in the context of legitimate legal analysis (which is done by lawyers) and well trained laypeople. It's one thing if someone asks why a part of a license is important, and then tries to apply the answer to some licensing goal. It's quite another if we just blast away at a new license on uninformed and misguided knowledge. I maintain that an open source license has certain characteristics and achieves some well defined goals - the primary one being quick, open distribution or source code and documentation to the end user without charging a license fee. It is entirely unappropriate to specify what belongs and doesn't belong in an open source license. Either the license achieves it's own goals or it doesn't. OSI will only bless licenses that meet the Open Source Definition: http://opensource.org/docs/definition.php Absoutely. No argument there. They should. The NASA license, however, presents a unique opportunity for opensource.org. The organization can look at the language and concerns the license addresses and use that as an acid test to see if their criteria needs revising (a good standards body does that - and I have the impression opensource.org does). opensource.org has several licenses written by industry leaders like Sun, IBM, MIT, and others who have a lot of experience writing great open source licenses. The NASA license is a wonderful opportunity to add a US government agency's license to that list. When opensource.org puts all of them side by side and study what makes them unique, but still qualify as open source, then opensource.org has advanced the state of open source licensing. Lawrence is correctly saying that if the NASA license requires tracking of released software, that license does not conform to the OSD, and therefore the OSI should not bless it. I believe that is a misguided concept in open source licensing that some hold to. Tracking the use of a product does not make a license non-open source. Open Source licensing deals with accessibility and cost, but tracking, per se, is not even relevant to that characteristic. In fact, tracking the uses of open source is a *key* marketing tool and the only way we can judge if an investment of time into open source is paying off, is it not? That would not mean that the license is a bad license. It would merely mean that software released under the license is not OSI Certified Open Source Software. right. See, that's objective - what you just said. I got the sense from the original poster overtones of big bad big brother. Too much work goes into these licenses to take the conversation in that direction - I felt the need to call him on it, and I hope I called everyone making similar arguments on that point. Richard Ian -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
On Fri, Feb 13, 2004 at 12:05:08AM -0800, Richard Schilling wrote: The OSI can do what it wants. My preference is to see all discussions the OSI endorses regarding licenses be done in the context of legitimate legal analysis (which is done by lawyers) and well trained laypeople. You mean like Larry? From what I understand he practices law in this very subject matter. I find it odd that you keep going on about legitimate legal analysis. Why don't you provide your analysis as to why you think it complies with the OSD? That's a hell of a lot more constructive than ripping on someone elses intial thoughts. It's one thing if someone asks why a part of a license is important, and then tries to apply the answer to some licensing goal. It's quite another if we just blast away at a new license on uninformed and misguided knowledge. Larry asked why it was necessary, I don't think he was blasting away at their license. Absoutely. No argument there. They should. The NASA license, however, presents a unique opportunity for opensource.org. The organization can look at the language and concerns the license addresses and use that as an acid test to see if their criteria needs revising (a good standards body does that - and I have the impression opensource.org does). opensource.org has several licenses written by industry leaders like Sun, IBM, MIT, and others who have a lot of experience writing great open source licenses. The NASA license is a wonderful opportunity to add a US government agency's license to that list. When opensource.org puts all of them side by side and study what makes them unique, but still qualify as open source, then opensource.org has advanced the state of open source licensing. That's nice. It's an opportunity. But if the license doesn't comply with the OSD then no matter how wonderful of an opportunity it is we shouldn't certify the license. This list exists to discuss potential issues. Larry's response is by no mean a definitive review of the license. He gave his initial thoughts. Largely based up on the rationale for the different license. One thing that there is a general sense of is that we don't tend to want to encourage the use of zillions of different licenses when there is already a license that serves the same purpose. Larry's response was going to the heart of that. He was suggesting that perhaps and existing license would really serve their needs. I believe that is a misguided concept in open source licensing that some hold to. Tracking the use of a product does not make a license non-open source. Open Source licensing deals with accessibility and cost, but tracking, per se, is not even relevant to that characteristic. In fact, tracking the uses of open source is a *key* marketing tool and the only way we can judge if an investment of time into open source is paying off, is it not? Complying with a registration system is not necessarily without costs. While those of us that live in countries with inexpensive internet access take net access for granted, not everyone has the same level of access. If such a registration requirement was included then it could effectively stop the free distribution of the software to some people. These sorts of issues have been discussed many times before. There is sound logic behind the complaints with clauses like this. And it's grounded in the priciples that you say it has nothing to do with. right. See, that's objective - what you just said. I got the sense from the original poster overtones of big bad big brother. Too much work goes into these licenses to take the conversation in that direction - I felt the need to call him on it, and I hope I called everyone making similar arguments on that point. I don't think Larry was doing any such thing. Hell he put a smiley in there. But seriously I don't think there is an OSI certified license that includes an indemnification clause. I don't think it's really unreasonable to ask NASA to justify why they really need this clause. I think Larry's point was that the OSL would probably meet their needs and is already approved. Personally, I found it odd that they wanted indemnification but are unwilling to provide it to contributors. That doesn't seem right to me. But perhaps that's just an oversight. -- Ben Reser [EMAIL PROTECTED] http://ben.reser.org Conscience is the inner voice which warns us somebody may be looking. - H.L. Mencken -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
Maybe it's just me, but I keep getting back to open source software licenses as a means to efficiently distribute software and allow people ready access to the knowledge it represents, and not so much as a mechanism to try a get license-savvy organizations to let their guard down. On 2004.02.12 21:03 Lawrence E. Rosen wrote: I'll reply off-list. I'm not ignorant about licenses or law. I'm an attorney. I'm general counsel of Open Source Initiative. I have written a book about open source licensing that will be published in a few months. And so I was not responding to NASA and its lawyers out of ignorance or as an armchair lawyer. They (and you) don't have to agree with me, but please respect my right to express myself. I'm not just spouting hot air. I didn't see a many points in your original posting that served any purpose other than to call on the carpet the motives and approach of the authors. If you are a lawyer, of all people, I would expect to see more constructive discussion about the license itself and how it can be made to comply with opensource.org's requirements. You should know, with all due respect to you and your profession, that providing specific reasons/alternatives, and avoiding taunting questions, is appropriate in helping NASA get their license to meet opensource.org requirements. If you're acting as council, please council on what they can do, not what they should have done. We would all learn from that approach. And, yes, I'm offended at the tone of the response NASA got to their posting. They've done more for open source work than many other organizations would even dream. They invented Beowulf cluters, for heaven's sake. Did I misread your response? Perhaps, but read it as such I did. I certainly respect what you do, but I also expect to see more respect directed to submitters of new licenses. Now, with respect to the INDEMIFY clause (section 8), which says : B. Waiver and Indemnity: RECIPIENT AGREES TO WAIVE ANY AND ALL CLAIMS AGAINST THE UNITED STATES GOVERNMENT, ITS CONTRACTORS AND SUBCONTRACTORS, AS WELL AS ANY PRIOR RECIPIENT AND SHALL INDEMNIFY AND HOLD HARMLESS THE UNITED STATES GOVERNMENT, ITS CONTRACTORS AND SUBCONTRACTORS, AS WELL AS ANY PRIOR RECIPIENT FOR ANY LIABILITIES, DEMANDS, DAMAGES, EXPENSES OR LOSSES THAT MAY ARISE FROM RECIPIENT'S USE OF THE SUBJECT SOFTWARE, INCLUDING ANY DAMAGES FROM PRODUCTS BASED ON, OR RESULTING FROM, THE USE THEREOF. RECIPIENT'S SOLE REMEDY FOR ANY SUCH MATTER SHALL BE THE IMMEDIATE, UNILATERAL TERMINATION OF THIS AGREEMENT. There is nothing in opensource.org's criteria that says the licensing party shall refrain from waivers and indeminification. NASA's policies require specific wording in section 8, and if that wording is not significantly different than what has been accepted before, then I don't see a problem. It's an administrative detail, really. I would like to see specific argument as to why, in NASA's case this wording does not need to apply to their sub-contractors. To me this is more appropriate to NASA's sub-contracting needs than what's in the other licenses. They know what's best for them, so let them demonstrate that. And if opensource.org throws out a license on this issue, I think it would be wise for opensource.org to review its criteria. I would suggest separating (in opensource.org's criteria) certain areas when evaluating new licenses. For example, develop clear criteria for the following and specify which items make/break an open source designation: distribution, re-distribution, deriverative works, copyright, waivers, deriverative works, related services, quality controls. opensource.org says what a license should have, but the website doesn't say enough about what the authors *can* do with their license. Specifically, I maintain that copyright and waivers are *not* determinants of an open source license, and I think it's improtant (if that's opensource.org criteria as well) to clearly state that. I would also suggest that as long as distribution is met, regardless of it's means, with or without re-distribution, the license be considered open source. From the end user's perspective getting a software product from one place -vs- 1,000 places and having the software tracked are not determinants of an open source license, per se. They get freedom of availability, use, modification and a means to submit changes. And that's what defines a collaborative project. All else is optional. Availability of the code and documentation, and the right to modify for personal use seem to me to be the baseline criteria to any open source license. Richard -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
On Fri, Feb 13, 2004 at 01:09:47AM -0800, Richard Schilling wrote: Maybe it's just me, but I keep getting back to open source software licenses as a means to efficiently distribute software and allow people ready access to the knowledge it represents, and not so much as a mechanism to try a get license-savvy organizations to let their guard down. I don't think that's Larry's intent. I think he's trying to get a justification for a deparature form the norm of open source licenses. I don't think this is a huge deal. On 2004.02.12 21:03 Lawrence E. Rosen wrote: I'll reply off-list. I hope you realize it's generally considered rude to quote someones private email to you on a public list without their specific permission to do so. Considering that Larry is an active contributor to this list, I'm sure he would have sent his email to the list if he'd intended to publish it to the world. I didn't see a many points in your original posting that served any purpose other than to call on the carpet the motives and approach of the authors. If you are a lawyer, of all people, I would expect to see more constructive discussion about the license itself and how it can be made to comply with opensource.org's requirements. You should know, with all due respect to you and your profession, that providing specific reasons/alternatives, and avoiding taunting questions, is appropriate in helping NASA get their license to meet opensource.org requirements. If you're acting as council, please council on what they can do, not what they should have done. We would all learn from that approach. And, yes, I'm offended at the tone of the response NASA got to their posting. They've done more for open source work than many other organizations would even dream. They invented Beowulf cluters, for heaven's sake. Did I misread your response? Perhaps, but read it as such I did. I certainly respect what you do, but I also expect to see more respect directed to submitters of new licenses. Yes you misread his email. He gave some initial thoughts with a clear statement that he intends to follow up with a more detailed review later. I think he wanted to get some questions out in the open to have them answered between when he posted his email and hopefully when he found the time to do a detailed review. I'm certain Larry would have given specific analysis on the exact text of the license later. Now, with respect to the INDEMIFY clause (section 8), which says : B. Waiver and Indemnity: RECIPIENT AGREES TO WAIVE ANY AND ALL CLAIMS AGAINST THE UNITED STATES GOVERNMENT, ITS CONTRACTORS AND SUBCONTRACTORS, AS WELL AS ANY PRIOR RECIPIENT AND SHALL INDEMNIFY AND HOLD HARMLESS THE UNITED STATES GOVERNMENT, ITS CONTRACTORS AND SUBCONTRACTORS, AS WELL AS ANY PRIOR RECIPIENT FOR ANY LIABILITIES, DEMANDS, DAMAGES, EXPENSES OR LOSSES THAT MAY ARISE FROM RECIPIENT'S USE OF THE SUBJECT SOFTWARE, INCLUDING ANY DAMAGES FROM PRODUCTS BASED ON, OR RESULTING FROM, THE USE THEREOF. RECIPIENT'S SOLE REMEDY FOR ANY SUCH MATTER SHALL BE THE IMMEDIATE, UNILATERAL TERMINATION OF THIS AGREEMENT. There is nothing in opensource.org's criteria that says the licensing party shall refrain from waivers and indeminification. NASA's policies require specific wording in section 8, and if that wording is not significantly different than what has been accepted before, then I don't see a problem. It's an administrative detail, really. I would like to see specific argument as to why, in NASA's case this wording does not need to apply to their sub-contractors. To me this is more appropriate to NASA's sub-contracting needs than what's in the other licenses. They know what's best for them, so let them demonstrate that. The only comments made regarding this was that we didn't particularly like it and that we wanted a explanation as to why they thought it was necessary in addition to a traditional warranty disclaimer. And if opensource.org throws out a license on this issue, I think it would be wise for opensource.org to review its criteria. I would suggest separating (in opensource.org's criteria) certain areas when evaluating new licenses. For example, develop clear criteria for the following and specify which items make/break an open source designation: distribution, re-distribution, deriverative works, copyright, waivers, deriverative works, related services, quality controls. opensource.org says what a license should have, but the website doesn't say enough about what the authors *can* do with their license. Specifically, I maintain that copyright and waivers are *not* determinants of an open source license, and I think it's improtant (if that's opensource.org criteria as well) to clearly state that. I would also suggest that as long as distribution is met, regardless of it's means, with or
Re: For Approval: NASA Open Source Agreement Version 1.1
Ben Reser wrote: [...] But seriously I don't think there is an OSI certified license that includes an indemnification clause. Hmm. IPL/CPL section 4? regards, alexander. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
On Fri, Feb 13, 2004 at 12:05:08AM -0800, Richard Schilling wrote: I'm just saying that a stance that NASA, a US government agency with deep pockets, should remove imdenification wording is a haneous idea. And in general bashing the license on non-licensing issues doesn't do any good. It actually hurts open source license development. It's just my opinion. Ok, I'm new here, but I've been a U.S. citizen for some time, and I'm confused. (I don't know if that's a cause and effect thing or not ;) The original request stated: The intent is for NOSA is to be the controlling agreement for all distribution and redistribution of software originated by NASA, including derivative works. Title 17, section 101 states: (C) any work not subject to copyright protection under this title. 'A ''work of the United States Government'' is a work prepared by an officer or employee of the United States Government as part of that person's official duties.' Title 17, section 105 states: Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise Therefore work originated at NASA, at least by NASA employees cannot be copyrighted. If they are not copyrighted, there is not only no need for a license, any such license would be trumped by copyright law. Back to the original request: i. NASA legal counsel requires that all NASA releases of software include indemnification of the U.S. Government from any third party liability arising from use or distribution of the software. ii. Federal Statute mandates that the U.S. Government can only be held subject to United States federal law. iii. NASA policy requires an effort to accurately track usage of released software for documentation and benefits realized?purposes. (sic) NASA legal counsel doesn't seem to be aware of the Title 17 restrictions on government works. Policy cannot trump Title 17 requirements. Adherence to ii, precludes i and iii. Title 17 does state that the U.S. government can hold copyrights when the are transfered to them, so the _can_ maintain copyrighted works either performed as a work for hire or purchased by the goverernment. In such cases, as an open source advocate I can see how an appropriate open source license would be useful. As a citizen and taxpayer, however, I can also see the point of view that the U.S. citenzenry paid for it so they should have unrestricted access to it. I'm not trying to be combative, here. I'm just trying to understand how all these points jive with NASA's intentions. As it stands now, any code that NASA produces that is not subject to security classification is probably already available for any use to anyone who files an FOI request. The response to such a request would be devoid of any indemnification or tracking restrictions. Can anyone make NASA's policy, Title 17, and the proposed license all make sense to me at the same time? mwa -- Mark W. Alexander [EMAIL PROTECTED] -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
Mark W. Alexander scripsit: NASA legal counsel doesn't seem to be aware of the Title 17 restrictions on government works. Policy cannot trump Title 17 requirements. Adherence to ii, precludes i and iii. The actual license (is anyone looking at it but me??) says that no copyright is claimed within the U.S. for works written by civil servants, as is the law. That implies that copyright *is* claimed for such works *outside* the U.S., which AFAIK is an entirely novel point, which is why I posted a query about it last night. -- While staying with the Asonu, I met a man from John Cowan the Candensian plane, which is very much like [EMAIL PROTECTED] ours, only more of it consists of Toronto. http://:www.ccil.org/~cowan --the unnamed narrator of Le Guin's _Changing Planes_ -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
Richard Schilling [EMAIL PROTECTED] writes: I'm just saying that a stance that NASA, a US government agency with deep pockets, should remove imdenification wording is a haneous idea. And in general bashing the license on non-licensing issues doesn't do any good. It actually hurts open source license development. It's just my opinion. I really think that you misread Lawrence's post. He is a long-time and respected contributor to this mailing list. But enough said about that. Lawrence is correctly saying that if the NASA license requires tracking of released software, that license does not conform to the OSD, and therefore the OSI should not bless it. I believe that is a misguided concept in open source licensing that some hold to. Tracking the use of a product does not make a license non-open source. Open Source licensing deals with accessibility and cost, but tracking, per se, is not even relevant to that characteristic. In fact, tracking the uses of open source is a *key* marketing tool and the only way we can judge if an investment of time into open source is paying off, is it not? First let me say that I understand that NASA's proposed license doesn't require tracking, it merely encourages it. I, and others, think that a tracking requirement would not be appropriate in an open source license. 1) Tracking presumably requires reporting back to some organization. What happens if that organization disappears? Does it then become impossible to distribute the code? If it does, the code would clearly no longer be open source. 2) It is generally considered to be desirable to permit open source software to be used anonymously, such as by a dissident under your least favorite form of government. Arguably preventing the possibility of anonymous use violates OSD #5. 3) While free software is not identical to open source software, they are generally congruous. The FSF specifically forbids tracking: http://www.fsf.org/philosophy/free-sw.html: You should also have the freedom to make modifications and use them privately in your own work or play, without even mentioning that they exist. If you do publish your changes, you should not be required to notify anyone in particular, or in any particular way. Ian -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
On Fri, Feb 13, 2004 at 09:18:30AM -0500, John Cowan wrote: Mark W. Alexander scripsit: NASA legal counsel doesn't seem to be aware of the Title 17 restrictions on government works. Policy cannot trump Title 17 requirements. Adherence to ii, precludes i and iii. The actual license (is anyone looking at it but me??) says that no copyright is claimed within the U.S. for works written by civil servants, as is the law. That implies that copyright *is* claimed for such works *outside* the U.S., which AFAIK is an entirely novel point, which is why I posted a query about it last night. So I'm not alone in my confusion... By my reading, Title 17 says that government works are not protected by copyright. Period. NASA also notes that they are only under the jurisdiction of U.S. federal law. No U.S. law does, or can, subject government works to foreign copyright authority. Therefore: No copyright, no right to license. Not here. Not there. Not in a box, and not with a fox. (Unless, you're represented by The SCO Group attorneys.) It's simply public domain. mwa -- Mark W. Alexander [EMAIL PROTECTED] -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
Mark W. Alexander scripsit: By my reading, Title 17 says that government works are not protected by copyright. Period. NASA also notes that they are only under the jurisdiction of U.S. federal law. No U.S. law does, or can, subject government works to foreign copyright authority. Well, I'm with you up to the last sentence. But by acceding to the Berne Convention, which is part of the supreme law of the land, on all fours with the Constitution and federal legislation, we do indeed subject ourselves to foreign copyright authority. Now a work can uncontroversially be in the public domain in one place and copyrighted in another: Australia's on life+50, the U.S. rule is everything after 1923 (with the exception of U.S. government works and a few others). Thus certain works by Edgar Rice Burroughs, F. Scott Fitzgerald, Sinclair Lewis, and Margaret Mitchell among many other Americans are still in copyright in the U.S. but not in Australia. But all those works were once in Australian copyright. The question is, can a work which is born into the public domain in its country of origin be in copyright anywhere at any time? The conflict of laws is an ugly and rather primitive subject (my father wrote an article about it once). -- You know, you haven't stopped talking John Cowan since I came here. You must have been http://www.reutershealth.com vaccinated with a phonograph needle. [EMAIL PROTECTED] --Rufus T. Firefly http://www.ccil.org/~cowan -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
On Fri, Feb 13, 2004 at 01:00:47PM +0100, Alexander Terekhov wrote: Ben Reser wrote: [...] But seriously I don't think there is an OSI certified license that includes an indemnification clause. Hmm. IPL/CPL section 4? I guess that is an indemnification clause. But it's also pretty much the same as 3H in NOSA which I don't think anyone has really objected to. Though the IPL and CPL do go farther than the NOSA 3H clause. I'm more comfortable with 3H, and the IPL/CPL section 4 than I am with the general waiver, indemnification clause. I can accept that if I'm going to make a commercial product I need to accept some liability, but I'm not fond of the idea of being in the position of indemnifying the US Government by simplying downloading and using their software. However, while I'm not fond of it, I don't think it rises to the level of OSD rejection. This is most certainly not the only license that is approved that has cluases I don't really care for... -- Ben Reser [EMAIL PROTECTED] http://ben.reser.org Conscience is the inner voice which warns us somebody may be looking. - H.L. Mencken -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
On 2004.02.13 07:38 Ian Lance Taylor wrote: [snip] I believe that is a misguided concept in open source licensing that some hold to. Tracking the use of a product does not make a license non-open source. Open Source licensing deals with accessibility and cost, but tracking, per se, is not even relevant to that characteristic. In fact, tracking the uses of open source is a *key* marketing tool and the only way we can judge if an investment of time into open source is paying off, is it not? First let me say that I understand that NASA's proposed license doesn't require tracking, it merely encourages it. I, and others, think that a tracking requirement would not be appropriate in an open source license. 1) Tracking presumably requires reporting back to some organization. What happens if that organization disappears? Does it then become impossible to distribute the code? If it does, the code would clearly no longer be open source. Detailed tracking is done anyway through web logs. And, companies dissappear all the time - no big deal there. It's their data so they can discard it if they like. I would rather know that more details about the product's use are being tracked than not. When a company tracks the usage of their product they have an easier time gaining support from onlookers, which is good for the product. I want to write to my congress people and make a case for NASA spending a lot of money on open source development. It's more compelling to do that if I can point out where the product is being used. Perhaps you're nervous because of the hype that licensing lawsuits get in the press? The rest of the NASA license guarantees free, unhampered use so tracking does not present a discrimination issue. Tracking information is meant to be held private, so it wouldn't be appropriate to release that inforamtion to the public anyway. Tracking information is absoutely key to a developer's ability to guage the success of their product. For example, if you have reliable numbers to compare your downloads with, say sales figures from a comperable well-known product (e.g. MS Office), then you can promote that product more effectively. 2) It is generally considered to be desirable to permit open source software to be used anonymously, such as by a dissident under your least favorite form of government. Arguably preventing the possibility of anonymous use violates OSD #5. Once a product under GNU is initially downloaded, the person can distribute it anonymously. OSD #5 simply states non-descrimination - which means that you won't restrict the availability of your product to a particular group/caste/class/industry, etc... I maintain that as long as non-restricted access is granted non-descrimination is complied with. Besides, non-descrimination typically is not meant to ensure that you cannot know where your product is used. 3) While free software is not identical to open source software, they are generally congruous. The FSF specifically forbids tracking: http://www.fsf.org/philosophy/free-sw.html: I think what I was pointing out before was that the standards for open source definitions are arbitrary and varied. I would like to stick to opensource.org's criteria on this list. You should also have the freedom to make modifications and use them privately in your own work or play, without even mentioning that they exist. If you do publish your changes, you should not be required to notify anyone in particular, or in any particular way. GNU specifically states that changes will be submitted back to the authors. That requirement, if enforced, provides much more stringent tracking than what NASA proposes. But, I also point out that this requirement in GNU is not enforced at all, generally, making that provision useless, and makes the language in the GNU license an empty requirement on its face. For the GNU license it means the requirement might not be enforced by a judge even though the requirements are there. Why put such a requirement in the license if it's not going to be enforced? This is a key difference between NASA's license and the existing ones - enforcement of the requirement. If NASA requires registration, then fine, but I expect NASA to make an effort to actually enforce the requirement. And, the efforts to do that are clearly stated in the license itself, making the license more consistent between intent and implementation than many other licenses (on that point). Richard Ian -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3 -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
[EMAIL PROTECTED] wrote: But all those works were once in Australian copyright. The question is, can a work which is born into the public domain in its country of origin be in copyright anywhere at any time? As far as I understand the Berne Convention, the answer is yes. Article 5(3) of the BC says: The enjoyment and the exercise of these rights ... shall be independent of the existence of protection in the country of origin of the work. Article 7(1) puts the duration of protection at life+50, but article 5(1) states that an author enjoys longer protection in countries that have a longer term. http://www.law.cornell.edu/treaties/berne/overview.html Arnoud -- Arnoud Engelfriet, Dutch patent attorney - Speaking only for myself Patents, copyright and IPR explained for techies: http://www.iusmentis.com/ -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
Arnoud Engelfriet scripsit: Article 5(3) of the BC says: The enjoyment and the exercise of these rights ... shall be independent of the existence of protection in the country of origin of the work. Article 7(1) puts the duration of protection at life+50, but article 5(1) states that an author enjoys longer protection in countries that have a longer term. Thanks; that looks definitive. So a U.S. government work is born into the public domain in the U.S., but is in copyright for 50 years after its publication date in Australia. Amazing. So Americans can ignore the civil-servant version of the NOSA license with impunity, but not so Australians. -- John Cowan http://www.ccil.org/~cowan[EMAIL PROTECTED] You tollerday donsk? N. You tolkatiff scowegian? Nn. You spigotty anglease? Nnn. You phonio saxo? Nnnn. Clear all so! `Tis a Jute (Finnegans Wake 16.5) -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
On Fri, 13 Feb 2004, Richard Schilling wrote: I would rather know that more details about the product's use are being tracked than not. When a company tracks the usage of their product they have an easier time gaining support from onlookers, which is good for the product. I want to write to my congress people and make a case for NASA spending a lot of money on open source development. It's more compelling to do that if I can point out where the product is being used. Tracking information is meant to be held private, so it wouldn't be appropriate to release that inforamtion to the public anyway. Tracking information is absoutely key to a developer's ability to guage the success of their product. For example, if you have reliable numbers to compare your downloads with, say sales figures from a comperable well-known product (e.g. MS Office), then you can promote that product more effectively. Even if the above rhetoric makes sense on your planet, the above has nothing to do with licensing discussion on this list. Here is the registration-related summary: - If NASA wants to kindly ask users to register, license is not the right place to do that. NASA should change the license before OSI approves it (a simple quality control issue) - If NASA wants to trick users into registering (while not legally requiring that), then NASA should change the license before OSI approves it (a simple honesty/openness of intent issue). - If NASA wants to legally require registration, then NASA should change the license to make that legal requirement clear (a simple quality control issue). This change is likely to reduce changes of NOSA being OSI certified, I guess. Alex. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
F. In an effort to track usage and maintain accurate records of the Subject Software, each Recipient, upon receipt of the Subject Software, is requested to register with NASA by visiting the following website: __. Note that each recipient is requested to register, not merely each recipient who downloads the software directly from NASA. If this were a requirement rather than a request, then I think the license would not be OSD-compliant. I have no personal problem with this. I'm sure NASA's reasons for gathering user information are totally benign, and that if their people can show that many individuals and companies benefit from thei work, it will help them get scarce budget dollars from Congress. But I don't think this really belongs in the license itself, any more than a request for all users of your software to (voluntarily) smile at their neighbor once a day, even though it certainly would be nice if we all smiled at each other a little more. I like licenses to be as simple and clear as possible. Therefore, I ask NASA, please, to consider removing the tracking clause from the license itself and make the request elsewhere. Another person thought it should be in the readme file. I agree. The documentation is probably the best place for this request. On the indemnification clause... Isn't a simple no warrenty disclaimer of liability enough? I'll defer to Larry and the other lawyers as to whether or not this clause has anything to do with the license's OSI-worthiness, but in the interests of simplification I would personally rather see it removed. - Robin 'Roblimo' Miller U.S. Taxpayer -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
For Approval: NASA Open Source Agreement Version 1.1
This Email was prepared in satisfaction of OSI Certification Process Step 4. for OSI certification of the NASA Open Source Agreement Version 1.1 (NOSA). 4.a. Tell us which existing OSI-approved license is most similar to your license. Explain why that license will not suffice for your needs. If your proposed license is derived from a license we have already approved, describe exactly what you have changed. This document is not part of the license; it is solely to help the license-discuss understand and review your license. The OSI-approved license most similar to NOSA is the IBM Public License. Elements of the Mozilla Public License and the GNU General Public License were incorporated as well. None of these agreements suffice on its own or combined together for purposes of NASA for the following reasons: i. NASA legal counsel requires that all NASA releases of software include indemnification of the U.S. Government from any third party liability arising from use or distribution of the software. See 4.B. ii. Federal Statute mandates that the U.S. Government can only be held subject to United States federal law. See 5.C. iii. NASA policy requires an effort to accurately track usage of released software for documentation and benefits realized?purposes. See 3.F. iv. Federeal Statutes and NASA regulations requires a prohibition in NASA contracts against representations by others that may be deemed to be an endorsement by NASA. See 3.E. v. Because it is important that each of the aforementioned clauses be a part of each open source agreement relating to NASA released software, the proposed agreement must mandate that distribution and redistribution of the software be done under the aegis of NOSA (mandatory domination similar to GPL). See 3.A. 4.b. Explain how software distributed under your license can be used in conjunction with software distributed under other open source licenses. Which license do you think will take precedence for derivative or combined works? Is there any software license that is entirely incompatible with your proposed license? The intent is for NOSA is to be the controlling agreement for all distribution and redistribution of software originated by NASA, including derivative works. If NOSA-governed software is combined with other separate software, which operate under their own license agreements, then NOSA need only govern the NASA-originated program(s). In the case where NASA accepts software already governed by the GPL, or any other open source license requiring domination by that license, NASA will normally not redistribute that software, since necessary clauses are not found in the GPL. 4.c. Include the plain text version of your license at the end of the email, either as an insertion or as an attachment. Attachment provided below. Furthermore, pursuant to OSI Certification Process Step 2., the following web site contains a formatted version of NOSA: http://www.nas.nasa.gov/Research/Software/Open-Source/NASA_Open_Source_Agreement_1.1.txt http://www.nas.nasa.gov/Research/Software/Open-Source/NASA_Open_Source_Agreement_1.1.doc Thank you for your consideration. Please address any questions or comments to me via this Email address or at 301-286-7886. Bryan A. Geurts Patent Attorney NASA Goddard Space Flight Center Code 503.0 8800 Greenbelt Road Greenbelt, MD 20771 (301) 286-7886 NASA OPEN SOURCE AGREEMENT VERSION 1.1 THIS OPEN SOURCE AGREEMENT (AGREEMENT) DEFINES THE RIGHTS OF USE, REPRODUCTION, DISTRIBUTION, MODIFICATION AND REDISTRIBUTION OF CERTAIN COMPUTER SOFTWARE ORIGINALLY RELEASED BY THE UNITED STATES GOVERNMENT AS REPRESENTED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA). ANYONE WHO USES, REPRODUCES, DISTRIBUTES, MODIFIES OR REDISTRIBUTES THE SUBJECT SOFTWARE, AS DEFINED HEREIN, OR ANY PART THEREOF, IS, BY THAT ACTION, ACCEPTING IN FULL THE RESPONSIBILITIES AND OBLIGATIONS CONTAINED IN THIS AGREEMENT. NASA Original Software Designation: _ NASA Original Software Title: ___ User Registration requested, please visit http://www. NASA Point of Contact for Original Software: 1. DEFINITIONS A. Contributor means NASA, as the developer of the Original Software, and any entity that makes a Modification. B. Covered Patents mean patent claims licensable by a Contributor that are necessarily infringed by the use or sale of its Modification alone or when combined with the Subject Software. C. Display means the showing of a copy of the Subject Software, either directly or by means of an image, or any other device. D. Distribution means conveyance or transfer of the Subject Software, regardless of means, to another. E. Larger Work means computer software that combines Subject Software, or portions thereof, with software
RE: For Approval: NASA Open Source Agreement Version 1.1
Bryan, Thanks for your detailed explanation of the reasons for your new license. I haven't read the license itself yet, but I want to comment on the supposed differences you identified between the NASA license and other already-approved licenses: i. NASA legal counsel requires that all NASA releases of software include indemnification of the U.S. Government from any third party liability arising from use or distribution of the software. See 4.B. All open source licenses include very broad disclaimers of liability. Does the government also require indemnification? Why? I'm sorry, but I can't conceive of any open source distributor or contributor to NASA software who would dare to indemnify the US government or any of its agencies. You're the one with the deep pockets and with a Congress that can legislate any protections you need against tort, contract or intellectual property liability. Why should we assume those risks for you? :-) Please stick with a disclaimer of liability; every open source license has one. ii. Federal Statute mandates that the U.S. Government can only be held subject to United States federal law. See 5.C. The Open Software License (OSL, www.opensource.org/licenses/osl-2.0.php) establishes jurisdiction, venue and governing law for a US-based licensor (such as a US government agency) in the United States. See OSL § 11. [Foreign readers of this email should take comfort that the OSL is not US-centric; jurisdiction under the OSL lies wherever the licensor resides or conducts its primary business.] iii. NASA policy requires an effort to accurately track usage of released software for documentation and benefits realized?purposes. See 3.F. Such provisions are not allowed in an open source license. Reporting requirements are viewed as unreasonable limitations on the rights of licensees to do anything they want internally with open source software (e.g., make copies, derivative works, etc.). On the other hand, because of reciprocity (see my further comment below) you'll be able to see improvements to NASA software that are distributed by others, and benefit from them. That will be measurable. iv. Federeal Statutes and NASA regulations requires a prohibition in NASA contracts against representations by others that may be deemed to be an endorsement by NASA. See 3.E. Various licenses do that. See, for example, OSL sections 4 [Exclusions from License Grant] and 6 [Attribution Rights]. v. Because it is important that each of the aforementioned clauses be a part of each open source agreement relating to NASA released software, the proposed agreement must mandate that distribution and redistribution of the software be done under the aegis of NOSA (mandatory domination similar to GPL). See 3.A. I call this feature reciprocity. Lots of licenses do that, including the GPL, MPL and CPL; similarly, the OSL contains a reciprocity condition that requires any licensee who distributes derivative works of OSL-licensed software to do so under the OSL. You don't need to write a new license to obtain that license feature. I'm sorry if I've misunderstood your license by relying on your summary of it rather than the license itself. I intend to read through the license itself soon, but I wanted to get these general questions on the table first. Regards, /Larry Rosen -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
On Thu, 12 Feb 2004, Bryan Geurts wrote: 1H. Recipient means anyone who acquires the Subject Software under this Agreement, including all Contributors. 1M. Use means the application or employment of the Subject Software for any purpose. 3F. In an effort to track usage and maintain accurate records of the Subject Software, each Recipient, upon receipt of the Subject Software, is requested to register with NASA by visiting the following website: __. Does the combination of the above imply that one have to register once one downloads NASA software? Downloading software package can be considered Use (the purpose would be occupying disk space, for example). And Use requires registration, right? Does reading software documentation covered by the NOSA license (e.g., on a public Web site with a link to NOSA license) require registration? Is registration required for each downloaded version of the software? Each major version? Each patch? Each installation? If NASA registration web site is down, does one have to wait with Using software until the site is up and operational? What if recipient does not have Internet connectivity (she got NASA software on a CD via mail) or NASA site is being blocked by her ISP? What if specified web site has moved or does not exist (e.g., NASA has been shut down for good). Or does requested to register imply no mandatory action from the Recipient? After all, the license does not say shall register. Would supplying wrong name to NASA.gov be considered a felony or just void the license? Recipient's name and personal information shall be used for statistical purposes only. The above does not seem to create any conditions for or require any actions from the Recipient. Why include this phrase? Is the intent to render the license void if NASA uses personal information for nonstatistical purposes? Is publishing a list of names with the number of registrations per month for each name a statistical purpose? How about identifying the user that registered more times than all other users (statistical maximum)? Thanks, Alex. P.S. Not sure why, but I am surprised that a government organization would want to establish extreme tracking measures which are likely to hinder its tax-funded software. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
Lawrence E. Rosen scripsit: iii. NASA policy requires an effort to accurately track usage of released software for documentation and benefits realized?purposes. See 3.F. Such provisions are not allowed in an open source license. Reporting requirements are viewed as unreasonable limitations on the rights of licensees to do anything they want internally with open source software (e.g., make copies, derivative works, etc.). On the other hand, because of reciprocity (see my further comment below) you'll be able to see improvements to NASA software that are distributed by others, and benefit from them. That will be measurable. Note the wording requires an effort to accurately track. It is the effort, not the tracking, that is mandatory, and indeed the draft NOSA requests rather than requires users to register with NASA. -- They tried to pierce your heartJohn Cowan with a Morgul-knife that remains in the http://www.ccil.org/~cowan wound. If they had succeeded, you wouldhttp://www.reutershealth.com become a wraith under the domination of the Dark Lord. --Gandalf -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
On Thu, 12 Feb 2004 [EMAIL PROTECTED] wrote: Note the wording requires an effort to accurately track. It is the effort, not the tracking, that is mandatory, and indeed the draft NOSA requests rather than requires users to register with NASA. If the intent is to show an effort, the corresponding informative clauses should be moved from the license to a Web site and/or software README file. Many license readers, especially those who are not native English speakers, will not see the difference you identify above or, regardless of their mother tongue, will not be sure whether the difference is legally significant. If the intent is to track users, the corresponding normative clauses should be rewarded to better match the intent. Alex. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
(just to the list) On Thu, 12 Feb 2004 [EMAIL PROTECTED] wrote: Note the wording requires an effort to accurately track. It is the effort, not the tracking, that is mandatory, and indeed the draft NOSA requests rather than requires users to register with NASA. Does this really belong in the license agreement where the question of why a requests is in there at all? This seems like it should be in the user documentation and is outside the context of the license agreement. With it in the license agreement people may simply not use the software at all if they do not wish to register and don't want to consult a lawyer about the legality of that. With this clause in there it seems vague whether it is Open Source or not. Beyond the legal issues I think it will be harmful to the goals of NASA in releasing software to have this in the license. --- Russell McOrmond, Internet Consultant: http://www.flora.ca/ Perspective of a digital copyright reformer on Sheila Copps, MP. http://www.flora.ca/russell/drafts/copps-ndp.html Discuss at: http://www.lulu.com/forums/viewtopic.php?t=2757 -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
The NASA license may be unconstitutional? Re: For Approval: NASA Open Source Agreement Version 1.1
The NASA license as proposed may be against the law in many locations. For example, in Taiwan the Constitution of the Republic of China is the supreme law of the land. The NASA license demands that it is governed by US Federal Law, which conflicts with the ROC's sovereignty and copyright laws and this requirement is unconstitutional. The same probably is true for most locations outside the US. --- Bryan Geurts [EMAIL PROTECTED] wrote: This Email was prepared in satisfaction of OSI Certification Process Step ii. Federal Statute mandates that the U.S. Government can only be held subject to United States federal law. See 5.C. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
O.K. - I'm going to rant. Nothing personal here Bryan, but NASA put some good time into this so I'm going to pick apart your resonse as a non-NASA person. Specifically, you state some views that are misguided. So, I post my response because so many times on this list people try to play armchair lawyer and pick apart a license. It's not appropriate and degrades the value of the discussion. Lawyers most likely write NASA licenses and that's something to respect. When you read NASA's license, you may very well be reading the best license that money can buy. I hope that opensource.org applies some sensible legal criteria when reviewing submissions - especially this one. All other discussions are just hot air. see below for some of my own hot air ... On 2004.02.12 12:21 Lawrence E. Rosen wrote: [snip] i. NASA legal counsel requires that all NASA releases of software include indemnification of the U.S. Government from any third party liability arising from use or distribution of the software. See 4.B. All open source licenses include very broad disclaimers of liability. Does the government also require indemnification? Why? I'm sorry, but I can't conceive of any open source distributor or contributor to NASA This is a liability issue. Why should the government be responsible for the misuse of the software they write? Why should anyone expose themselves to third party lawsuits when all they want to do is provide some benefit to the public? Anyone who doesn't understand this part of the license has no business using the associated software in the first place. software who would dare to indemnify the US government or any of its agencies. You're the one with the deep pockets and with a Congress that can legislate any protections you need against tort, contract or intellectual property liability. Why should we assume those risks for you? :-) Please stick with a disclaimer of liability; every open source license has one. You have it backwards. Why should NASA accept the risk of you using their product? That would put my (however small) tax contribution to NASA at risk! Not O.K. NASA obviously spent a lot of time putting that license together, and those who have even an ounce of a clue about licensing recognize the importance of this wording. Better question: Why should the NASA license stoop to the lower level of other open source licenses that are just pseudo legal terms written up by a bunch of non-legal people? The onus to provide a suitable-for-US-courts license is on the people who wrote the original licenses. Specifically, the folks who wrote the existing licenses endorced by opensource.org have the responsibility to show their writing is up to par with what NASA puts out - not the other way around. Is NASA perfect? no, but at least they're open to discussing the license in public on this list. And they'll address *legitimate* licensing issues as they come up. Big brother ranting just doesn't belong in a discussion about licenses. I'm glad NASA's got big pockets, and I'm glad they're protecting it with their licenses so they can worry about space exploration. ii. Federal Statute mandates that the U.S. Government can only be held subject to United States federal law. See 5.C. The Open Software License (OSL, www.opensource.org/licenses/osl-2.0.php) establishes jurisdiction, venue and governing law for a US-based licensor (such as a US government agency) in the United States. See OSL § 11. [Foreign readers of this email should take comfort that the OSL is not US-centric; jurisdiction under the OSL lies wherever the licensor resides or conducts its primary business.] In any license, specifying a venue is up to the writer. Take it or don't use the license. Or how about asking the folks at NASA, Would you also consider venue as a suitable venue in your license? That would at least be POLITE. Chances are the presently stated venue has the best chance of making sure NASA can fend off frivilous and silly lawsuits. Just a guess. . . iii. NASA policy requires an effort to accurately track usage of released software for documentation and benefits realized?purposes. See 3.F. Such provisions are not allowed in an open source license. Reporting requirements are viewed as unreasonable limitations on the rights of licensees to do anything they want internally with open source Biggest problem of all here - who in all of creation has the authority on blessing open source licenses? I don't even think that half of the existing opensource.org endorsed licenses are capable of achieving their self-stated goals. Asking NASA to adopt license language that might not serve its intended purpose is just flat out wierd. I maintain that an open source license has certain characteristics and achieves some well defined goals - the primary one being quick, open distribution or source code and documentation to the end user
Re: For Approval: NASA Open Source Agreement Version 1.1
Richard Schilling [EMAIL PROTECTED] writes: Such provisions are not allowed in an open source license. Reporting requirements are viewed as unreasonable limitations on the rights of licensees to do anything they want internally with open source Biggest problem of all here - who in all of creation has the authority on blessing open source licenses? Huh? The point of this mailing list is to advise OSI on blessing open source licenses. You don't have to believe that OSI's blessing has any value. But there isn't much point to joining this mailing list if you reject the whole concept of OSI blessing a license. I maintain that an open source license has certain characteristics and achieves some well defined goals - the primary one being quick, open distribution or source code and documentation to the end user without charging a license fee. It is entirely unappropriate to specify what belongs and doesn't belong in an open source license. Either the license achieves it's own goals or it doesn't. OSI will only bless licenses that meet the Open Source Definition: http://opensource.org/docs/definition.php Lawrence is correctly saying that if the NASA license requires tracking of released software, that license does not conform to the OSD, and therefore the OSI should not bless it. That would not mean that the license is a bad license. It would merely mean that software released under the license is not OSI Certified Open Source Software. Ian -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: For Approval: NASA Open Source Agreement Version 1.1
First of all general comments. I see real problems for this license in cases where the software was written entirely by civil servents. In such a case it can't be a bare license. It'd have to be a contract. But if it's a contract aren't you trying to create a copyright for the work through the contract that Title 17 specifically says you can't have? Don't you start running into all the privity problems that have been discussed lately surrounding the GPL? On Thu, Feb 12, 2004 at 11:28:11AM -0800, Bryan Geurts wrote: E. Larger Work means computer software that combines Subject Software, or portions thereof, with software separate from the Subject Software that is not governed by the terms of this Agreement. I. A Recipient may create a Larger Work by combining Subject Software with separate software not governed by the terms of this agreement and distribute the Larger Work as a single product. In such case, the Recipient must make sure Subject Software included in the Larger Work is subject to this Agreement. I see this as a problem. There's no mere aggregation exception here. A Linux distribution that included your software on their CD could be considered as distributing a single product. And according to your license would have to be licensed in its entirety under the NOSA. I'd argue that this violates section 9 of the OSD. F. Modification means any alteration of, including addition to or deletion from, the substance or structure of either the Original Software or Subject Software, and includes derivative works, as that term is defined in the Copyright Statute, 17 USC 101. However, the act of including Subject Software as part of a Larger Work does not in and of itself constitute a Modification. C. Each Contributor must characterize its alteration of the Subject Software as a Modification and must identify itself as the originator of its Modification in a manner that reasonably allows subsequent Recipients to identify the originator of the Modification. In fulfillment of these requirements, Contributor must include a file (e.g., a change log file) that describes the alterations made and the date of the alterations, identifies Contributor as originator of the alterations, and consents to characterization of the alterations as a Modification, for example, by including a statement that the Modification is derived, directly or indirectly, from Original Software provided by NASA. Once consent is granted, it may not thereafter be revoked. This seems contradictory to me. You define Modification in a way that would include things that might not necessarily be considered derivative works. But then seem to require people to include a statement stipulating that their Modification is a derivative. This may not be your intent here, but it seems someone could read it that way. Granted you didn't use the term derivative work but rather derived as well. I think the way the GPL handles this better. Separating the changes made from the file can create a real mess when creating derivative works (especially since it's not really clear if you can remove these notifications under this license, you later note that you can't remove a copyright notice without specific permission and a statement that its a derviative would seem to imply a copyright). I'd say that the Modifications must be noted in the file and the change log file if one exists. That way if the change log file were to get seperated from the file you'd still have the record. Or you could just do what the GPL does and require the notification to be added to the file. I'll note though that a lot of projects completely ignore this requirement of the GPL and use separate change log files. For that matter I think requiring a written statement of it being a derivative is unnecessary. I can just see this huge mess of written statements in the change log file. Which would make the change log file less than useful. Especially if every change would require such a declaration. Incidentally, if NASA accepts contributions then they'd be bound by these terms as well. Also while probably OSD compliant, I'll point out that Debian would probably not consider this as meeting the DFSG. By requiring identification of the contributor it would fail their Chinese dissident test. F. In an effort to track usage and maintain accurate records of the Subject Software, each Recipient, upon receipt of the Subject Software, is requested to register with NASA by visiting the following website: __. Recipient's name and personal information shall be used for statistical purposes only. Once a Recipient makes a Modification available, it is requested that the Recipient inform NASA at the web site provided above how to access the Modification. [Alternative paragraph for use when a web site for release and monitoring of subject software will not be supported by releasing project or Center] In an
Re: For Approval: NASA Open Source Agreement Version 1.1
Ian Lance Taylor scripsit: Lawrence is correctly saying that if the NASA license requires tracking of released software, that license does not conform to the OSD, and therefore the OSI should not bless it. However, the NASA license does *not* require it. -- Eric Raymond is the Margaret Mead John Cowan of the Open Source movement.[EMAIL PROTECTED] --Lloyd A. Conway, http://www.ccil.org/~cowan amazon.com review http://www.reutershealth.com -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
Re: The NASA license may be unconstitutional? Re: For Approval: NASA Open Source Agreement Version 1.1
On 2004.02.12 20:05 Andy Tai wrote: The NASA license as proposed may be against the law in many locations. For example, in Taiwan the Constitution of the Republic of China is the supreme law of the land. The NASA license demands that it is governed by US Federal Law, which conflicts with the ROC's sovereignty and copyright laws and this requirement is unconstitutional. These are serious issuees with respect to international licensing, but I doubt the NASA license is unconsitiutional in the US. Perhaps in other countries, but most likely not here :-) Licenses always must be specific to the country in which they are used for them to be effective. The World Trade Organization provides a common framework for licensing and Intellectual Property standards. Since China is a member of the WTO it should help address these types of international differences. Richard Schilling The same probably is true for most locations outside the US. --- Bryan Geurts [EMAIL PROTECTED] wrote: This Email was prepared in satisfaction of OSI Certification Process Step ii. Federal Statute mandates that the U.S. Government can only be held subject to United States federal law. See 5.C. -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3 -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
