Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

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

> -Original Message-
> From: Wheeler, David A [mailto:dwhee...@ida.org]
> Sent: Thursday, August 18, 2016 2:52 PM
> To: legal-disc...@apache.org
> Cc: Karl Fogel <kfo...@red-bean.com>; Lawrence Rosen <lro...@rosenlaw.com>; 
> license-discuss@opensource.org
> Subject: RE: [License-discuss] [Non-DoD Source] Re: US Army Research 
> Laboratory Open Source License proposal
>
> William A Rowe Jr [Caution-mailto:wr...@rowe-clan.net]:
> > Unsure how this news might apply but it sounds like changes in overall 
> > policy might gain some traction to address this... If OMB came up
> with the rational of either approving AL 2.0 as is, or made a compelling 
> case for AL 2.1 clarifications.
> Caution-https://techcrunch.com/2016/08/08/the-white-house-just-released-the-federal-source-code-policy-to-help-government-agencies-
> go-open-source/
>
> The detailed policy is here:
> Caution-https://www.whitehouse.gov/sites/default/files/omb/memoranda/2016/m_16_21.pdf
>
> That new US federal government policy doesn't directly apply to many of 
> Cem's cases.  The policy doesn't apply to National Security
> Systems (NSS), and I expect that a lot of what the Army research labs do 
> would be classified as NSS.  The policy certainly presses for the
> release of open source software in general; it requires that a minimum of 
> 20% of custom-developed code be released as OSS in each year
> for 3 years.  It does note (in its definitions) that "custom developed code" 
> includes software developed by government officials as part of
> their official duties.  The policy itself does not delve into this kind of 
> legal analysis.

The current lack of legal analysis is the problem.  If they had complete 
analysis and full guidance about the license, we wouldn't be here at all!

Thanks,
Cem Karan


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Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

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

The real trick is the DoJ; they have to defend the USG in court, as well as 
deal with any other legal aspects.  If they are willing to accept the licenses 
as-is, then I suspect that rest of the USG would go along (note that I can't 
speak for the USG on this, someone with authority to sign off on the policy 
would have to make that decision).

Thanks,
Cem Karan

> -Original Message-
> From: William A Rowe Jr [mailto:wr...@rowe-clan.net]
> Sent: Thursday, August 18, 2016 2:26 PM
> To: legal-disc...@apache.org
> Cc: Karl Fogel <kfo...@red-bean.com>; Lawrence Rosen <lro...@rosenlaw.com>; 
> license-discuss@opensource.org
> Subject: RE: [License-discuss] [Non-DoD Source] Re: US Army Research 
> Laboratory Open Source License proposal
>
> All active links contained in this email were disabled. Please verify the 
> identity of the sender, and confirm the authenticity of all links
> contained within the message prior to copying and pasting the address to a 
> Web browser.
>
>
> 
>
>
>
>
> On Aug 3, 2016 08:51, "Karan, Cem F CIV USARMY RDECOM ARL (US)" 
> <cem.f.karan@mail.mil < Caution-
> mailto:cem.f.karan@mail.mil > > wrote:
> >
> > Hi all, Karl Fogel on the mil-oss (Caution-http://www.mil-oss.org/ <
> > Caution-http://www.mil-oss.org/ > ) mailing list made a suggestion
> > that might be the solution.  Would the Apache foundation be willing to
> > work on Apache 2.1, or maybe 3.0, incorporating changes as needed to
> > cover works that don't have copyright attached to them?  If that were 
> > possible, we wouldn't need the ARL OSL at all.
> >
> > Thanks,
> > Cem Karan
>
> Unsure how this news might apply but it sounds like changes in overall 
> policy might gain some traction to address this... If OMB came up
> with the rational of either approving AL 2.0 as is, or made a compelling 
> case for AL 2.1 clarifications.
>
> Caution-https://techcrunch.com/2016/08/08/the-white-house-just-released-the-federal-source-code-policy-to-help-government-agencies-
> go-open-source/ < 
> Caution-https://techcrunch.com/2016/08/08/the-white-house-just-released-the-federal-source-code-policy-to-help-
> government-agencies-go-open-source/ >



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Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

[Christopher Sean Morrison]

> Could you describe what the impact would be to contractors under DFARS
> clauses 252.227-7013/7014 and ARL OSL?  In particular where software was
> developed at private expense or mixed funding and the government has less
> than unlimited rights.

Under 252.227-7014, if the software was not developed exclusively with Gov’t 
funds, the Gov’t has unlimited rights 5 years after the last contract mod and 
could release under ARL OSL.  Before then and devoid of other clauses, the 
contractor would be able to assert copyright and release as OSS.  DFARS 
252.227-7013 pertains to data, specifically not software, but is framed the 
same.

If it was developed exclusively at private expense, the Gov’t has limited 
rights and cannot release.  In that case, it’s up to the contractor.

Cheers!
Sean

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Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

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

The ARL OSL does not change anything in the DFARS clauses; as I understand it 
(I am not a lawyer) the USG would have to have all the rights necessary to 
release the code before it could do so.  

Thanks,
Cem Karan

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Tzeng, Nigel H.
> Sent: Monday, August 08, 2016 12:46 PM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: US Army Research 
> Laboratory Open Source License proposal
> 
> All active links contained in this email were disabled.  Please verify the 
> identity of the sender, and confirm the authenticity of all links
> contained within the message prior to copying and pasting the address to a 
> Web browser.
> 
> 
> 
> 
> 
> 
> Cam,
> 
> Could you describe what the impact would be to contractors under DFARS 
> clauses 252.227-7013/7014 and ARL OSL?  In particular where
> software was developed at private expense or mixed funding and the government 
> has less than unlimited rights.
> 
> Regards,
> 
> Nigel
> 
> 
> On 8/8/16, 8:32 AM, "License-discuss on behalf of Karan, Cem F CIV USARMY 
> RDECOM ARL (US)"  boun...@opensource.org on behalf of cem.f.karan@mail.mil> wrote:
> 
> >The problem is that while the original USG works don't have copyright,
> >works produced by contributors may.  E.g., any code supplied by
> >contractors, anything provided by persons outside the USG, etc.  We
> >need to have a license that both protects those individuals, and
> >ensures that they don't use their copyright to harm others. If it were
> >possible to automatically swap in the Apache 2.0 license whenever and
> >wherever there was copyright, we'd do that.  My understanding from our
> >lawyers is that we could only do that if the USG owned the code
> >outright; since contributors are licensing the code to the USG (and to
> >anyone downstream), switching the license would require asking each
> >contributor to agree to the change; we couldn't do it automatically.
> >
> >Remember, the goal is not just to protect the USG, it is also to
> >protect all contributors and downstream users of any code from legal 
> >headaches.
> >
> >As for enforcing the license, there are three ways.  If there is
> >copyright on a piece of work, then the normal copyright enforcement
> >mechanisms apply.  If there is no copyright, the USG can still enforce
> >trademark rules, forcing a non-compliant contributor or downstream user
> >to either comply, or make it clear that they have a different piece of
> >software.  Finally, contributors are forming a contract with the USG
> >when they contribute to USG projects.  This should allow the USG to sue
> >if anyone that breaks the contract; note that this is an as-yet
> >untested legal theory, and would need to be litigated to be proven true or 
> >false.
> >
> >Thanks,
> >Cem Karan
> >
> >> -Original Message-
> >> From: License-discuss
> >>[Caution-mailto:license-discuss-boun...@opensource.org]
> >>On Behalf Of Kevin Fleming
> >> Sent: Friday, August 05, 2016 3:48 PM
> >> To: license-discuss@opensource.org
> >> Subject: Re: [License-discuss] [Non-DoD Source] Re: US Army Research
> >>Laboratory Open Source License proposal
> >>
> >> All active links contained in this email were disabled. Please verify
> >>the identity of the sender, and confirm the authenticity of all links
> >>contained within the message prior to copying and pasting the address
> >>to a Web browser.
> >>
> >>
> >> 
> >>
> >>
> >>
> >> Thanks for summarizing; I think you and I agree :-)
> >>
> >>
> >> I cannot envision any sort of contract which is designed to allow
> >>access to the code, with modification, distribution, derivation, and
> >>other  permissions, but which also allows the USG to enforce any sort
> >>of restrictions on those activities (given the lack of copyright). I'm
> >>not a  lawyer, but having been involved on both sides of dozens of
> >>open source licenses, I know what I (and my employer) would be able to
> >>understand and accept, and as a result I don't see how such a contract
> >>would do anything but interfere with adoption of the software  covered
> >>by it.
> >>
> >>
> >> If, as has been mentioned, there are patents and/or trademarks
> >>involved, then a contract which clearly addresses those aspect

Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

[Tzeng, Nigel H.]

Cam,

Could you describe what the impact would be to contractors under DFARS
clauses 252.227-7013/7014 and ARL OSL?  In particular where software was
developed at private expense or mixed funding and the government has less
than unlimited rights.

Regards,

Nigel


On 8/8/16, 8:32 AM, "License-discuss on behalf of Karan, Cem F CIV USARMY
RDECOM ARL (US)" <license-discuss-boun...@opensource.org on behalf of
cem.f.karan@mail.mil> wrote:

>The problem is that while the original USG works don't have copyright,
>works produced by contributors may.  E.g., any code supplied by
>contractors, anything provided by persons outside the USG, etc.  We need
>to have a license that both protects those individuals, and ensures that
>they don't use their copyright to harm others. If it were possible to
>automatically swap in the Apache 2.0 license whenever and wherever there
>was copyright, we'd do that.  My understanding from our lawyers is that
>we could only do that if the USG owned the code outright; since
>contributors are licensing the code to the USG (and to anyone
>downstream), switching the license would require asking each contributor
>to agree to the change; we couldn't do it automatically.
>
>Remember, the goal is not just to protect the USG, it is also to protect
>all contributors and downstream users of any code from legal headaches.
>
>As for enforcing the license, there are three ways.  If there is
>copyright on a piece of work, then the normal copyright enforcement
>mechanisms apply.  If there is no copyright, the USG can still enforce
>trademark rules, forcing a non-compliant contributor or downstream user
>to either comply, or make it clear that they have a different piece of
>software.  Finally, contributors are forming a contract with the USG when
>they contribute to USG projects.  This should allow the USG to sue if
>anyone that breaks the contract; note that this is an as-yet untested
>legal theory, and would need to be litigated to be proven true or false.
>
>Thanks,
>Cem Karan
>
>> -Original Message-
>> From: License-discuss [mailto:license-discuss-boun...@opensource.org]
>>On Behalf Of Kevin Fleming
>> Sent: Friday, August 05, 2016 3:48 PM
>> To: license-discuss@opensource.org
>> Subject: Re: [License-discuss] [Non-DoD Source] Re: US Army Research
>>Laboratory Open Source License proposal
>> 
>> All active links contained in this email were disabled. Please verify
>>the identity of the sender, and confirm the authenticity of all links
>> contained within the message prior to copying and pasting the address
>>to a Web browser.
>> 
>> 
>> 
>> 
>> 
>> 
>> Thanks for summarizing; I think you and I agree :-)
>> 
>> 
>> I cannot envision any sort of contract which is designed to allow
>>access to the code, with modification, distribution, derivation, and
>>other
>> permissions, but which also allows the USG to enforce any sort of
>>restrictions on those activities (given the lack of copyright). I'm not a
>> lawyer, but having been involved on both sides of dozens of open source
>>licenses, I know what I (and my employer) would be able to
>> understand and accept, and as a result I don't see how such a contract
>>would do anything but interfere with adoption of the software
>> covered by it.
>> 
>> 
>> If, as has been mentioned, there are patents and/or trademarks
>>involved, then a contract which clearly addresses those aspects, and only
>> those aspects, would make much more sense.
>> 
>> 
>> On Wed, Aug 3, 2016 at 9:29 AM, Maarten Zeinstra <m...@kl.nl <
>>Caution-mailto:m...@kl.nl > > wrote:
>> 
>> 
>>  Hi Kevin and Cem,
>> 
>>  I think the confusion here is indeed about ownership vs, access, As I
>>understand Cem¹s project he wants to provide access to third
>> parties to its code and wants to Œlicense¹ it. However open source
>>license (afaik) deal with the ownership part of the code and does not
>> deal in restricting access to the code.
>> 
>>  I think Cem is indeed on the right track with #3 in his reply. You
>>cannot rely on copyright, you could only focus on any patent
>> aspects of open source license. Coming from the Creative Commons world,
>>I do not know about patents in Open Source licenses.
>> 
>>   I also think that is near impossible to enforce access limiting
>>contracts in a one-to-all way. I wrote an opinion about a related
>> situation about the New York Metropolitan Museum that provided free
>>downloads of its public domain images but restricted those
>> down

Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

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

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Lawrence Rosen
> Sent: Friday, August 05, 2016 4:37 PM
> To: license-discuss@opensource.org
> Cc: Lawrence Rosen <lro...@rosenlaw.com>
> Subject: Re: [License-discuss] [Non-DoD Source] Re: US Army Research 
> Laboratory Open Source License proposal
> 
> Cem Karan wrote:
> 
> > The theory for contract-based licenses like the ARL OSL is that either a) 
> > everyone keeps to the terms of the license (forming a chain), or
> b) if someone breaks the terms, they have broken the contract with their 
> immediate predecessor in the chain of contracts, and by
> induction, with everyone else in the chain.  Since they've broken the 
> contract, they no longer have the right to use the software, and can
> be forced to stop via contract law.  Moreover, if the contract has been 
> written correctly, it can fall back onto copyright law, in which case
> anyone that has licensed their work via copyright can also sue.
> 
> 
> 
> Some of this is not quite true. The "forming a chain" aspect of licensing is 
> actually quite complicated legally, with local law playing an
> important role in the decision. Induction? It isn't clear that a 
> contract-based license (ARL OSL or any other) can reach through the
> iterations of free software in the absence of contractual privity. But 
> anyway, why bother? Most licenses, including the Apache License,
> now are direct from the copyright owner to each licensee, avoiding that legal 
> privity problem and making their non-warranties directly
> enforceable.

You're right about the complexity; I'm not a lawyer, so I don't fully 
understand it, but the ARL lawyers I'm working with tell me that it can be 
enforced that way.  However, I suspect it would need to be litigated before any 
firm statements could be made.

As for why we're bothering, it's because USG works don't have copyright within 
the USA.  If they did, we'd just the use the Apache 2.0 license and not even 
try with the ARL OSL.  As it stands, we're not sure what would happen if we 
just went with the Apache 2.0 license for USG works that don't have copyright 
attached; would a smart lawyer argue that the entire license is invalid, and 
then start suing contributors right and left?  Or would it all hold together?  
Our lawyers aren't sure, and don't want to risk either the USG, or any 
contributors or downstream users of our code.  The theory is that once the 
license is declared invalid for the USG, it would be invalid for all 
contributions as well, which could be very, very bad.  The USG is (in my 
opinion) well-funded and has a highly capable legal defense team, and so I 
believe it would likely weather any legal storm.  Our contributors and 
downstream users might not be as capable of defending themselves.  For their 
sake, as well as the USG, we need a license that is likely to stand up in court.
 
> Being "forced to stop via contract law" is and remains a complex litigation 
> issue between a copyright owner and her licensee. Reference,
> just for fun, the Oracle vs. Google case.

I'm aware that it isn't easy.  However, having some tools is better than having 
no tools at all.

> in the case of US government works, the "fall back onto copyright law" is 
> unenforceable, at least in the U.S. Why do you even care what
> happens to those works under the Berne Convention in other countries?

Personally, I don't.  However, the Berne Convention kept coming up in 
discussions, so I decided to look into it.  I'm going to keep digging into it, 
primarily to clarify that potential problem for everyone on the list.
 
> /Larry
> 
> 
> 
> 
> 
> -Original Message-
> From: Karan, Cem F CIV USARMY RDECOM ARL (US) 
> [Caution-mailto:cem.f.karan@mail.mil]
> Sent: Friday, August 5, 2016 1:00 PM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: US Army Research 
> Laboratory Open Source License proposal
> 
> 
> 
> If by 'restrict' you mean 'comply with the terms of the ARL OSL', then I 
> agree with you.  Remember, the only reason we're pursuing the ARL
> OSL is because the vast majority of our work has no copyright, and therefore 
> can't be licensed under the standard licenses.  If we could,
> we'd drop the ARL OSL and use Apache 2.0 instead (I've floated the idea of an 
> Apache 2.1 or 3.0 that addressed the copyright issue on the
> ASF Legal Discuss mailing list, but haven't had any interest yet).  By the 
> way, the Apache 2.0 license is fairly permissive; in practice, it just
> prevents bad actors from abusing IP and copyright law in a manner similar to 
> what happened with Rambus (see Caution-
> https://en.wikipedia.org/wiki/

Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

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

The problem is that while the original USG works don't have copyright, works 
produced by contributors may.  E.g., any code supplied by contractors, anything 
provided by persons outside the USG, etc.  We need to have a license that both 
protects those individuals, and ensures that they don't use their copyright to 
harm others. If it were possible to automatically swap in the Apache 2.0 
license whenever and wherever there was copyright, we'd do that.  My 
understanding from our lawyers is that we could only do that if the USG owned 
the code outright; since contributors are licensing the code to the USG (and to 
anyone downstream), switching the license would require asking each contributor 
to agree to the change; we couldn't do it automatically.

Remember, the goal is not just to protect the USG, it is also to protect all 
contributors and downstream users of any code from legal headaches.  

As for enforcing the license, there are three ways.  If there is copyright on a 
piece of work, then the normal copyright enforcement mechanisms apply.  If 
there is no copyright, the USG can still enforce trademark rules, forcing a 
non-compliant contributor or downstream user to either comply, or make it clear 
that they have a different piece of software.  Finally, contributors are 
forming a contract with the USG when they contribute to USG projects.  This 
should allow the USG to sue if anyone that breaks the contract; note that this 
is an as-yet untested legal theory, and would need to be litigated to be proven 
true or false.  

Thanks,
Cem Karan

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Kevin Fleming
> Sent: Friday, August 05, 2016 3:48 PM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: US Army Research 
> Laboratory Open Source License proposal
> 
> All active links contained in this email were disabled. Please verify the 
> identity of the sender, and confirm the authenticity of all links
> contained within the message prior to copying and pasting the address to a 
> Web browser.
> 
> 
> 
> 
> 
> 
> Thanks for summarizing; I think you and I agree :-)
> 
> 
> I cannot envision any sort of contract which is designed to allow access to 
> the code, with modification, distribution, derivation, and other
> permissions, but which also allows the USG to enforce any sort of 
> restrictions on those activities (given the lack of copyright). I'm not a
> lawyer, but having been involved on both sides of dozens of open source 
> licenses, I know what I (and my employer) would be able to
> understand and accept, and as a result I don't see how such a contract would 
> do anything but interfere with adoption of the software
> covered by it.
> 
> 
> If, as has been mentioned, there are patents and/or trademarks involved, then 
> a contract which clearly addresses those aspects, and only
> those aspects, would make much more sense.
> 
> 
> On Wed, Aug 3, 2016 at 9:29 AM, Maarten Zeinstra <m...@kl.nl < 
> Caution-mailto:m...@kl.nl > > wrote:
> 
> 
>   Hi Kevin and Cem,
> 
>   I think the confusion here is indeed about ownership vs, access, As I 
> understand Cem’s project he wants to provide access to third
> parties to its code and wants to ‘license’ it. However open source license 
> (afaik) deal with the ownership part of the code and does not
> deal in restricting access to the code.
> 
>   I think Cem is indeed on the right track with #3 in his reply. You 
> cannot rely on copyright, you could only focus on any patent
> aspects of open source license. Coming from the Creative Commons world, I do 
> not know about patents in Open Source licenses.
> 
>I also think that is near impossible to enforce access limiting 
> contracts in a one-to-all way. I wrote an opinion about a related
> situation about the New York Metropolitan Museum that provided free downloads 
> of its public domain images but restricted those
> downloads to non-commercial use: 
> Caution-https://www.kl.nl/en/opinion/why-the-met-does-not-open-any-real-doors/
>  < Caution-
> https://www.kl.nl/en/opinion/why-the-met-does-not-open-any-real-doors/ >  
> (tl;dr: you cannot enforce general rules about free
> downloads, and it is a bad practise to try to do so).
> 
>   the USG cannot enforce open source license as they have no underlying 
> copyright, any contract drafted that is similar to an open
> source license without the licensing of copyright and limiting the access or 
> reuse of the work should not be considered a open source
> license and fall into the category of bad practise.
> 
>   Re: Berne Convention. Sure Page Miller is right. But 

Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

[Lawrence Rosen]

Cem Karan wrote:

> The theory for contract-based licenses like the ARL OSL is that either a) 
> everyone keeps to the terms of the license (forming a chain), or b) if 
> someone breaks the terms, they have broken the contract with their immediate 
> predecessor in the chain of contracts, and by induction, with everyone else 
> in the chain.  Since they've broken the contract, they no longer have the 
> right to use the software, and can be forced to stop via contract law.  
> Moreover, if the contract has been written correctly, it can fall back onto 
> copyright law, in which case anyone that has licensed their work via 
> copyright can also sue.  

 

Some of this is not quite true. The "forming a chain" aspect of licensing is 
actually quite complicated legally, with local law playing an important role in 
the decision. Induction? It isn't clear that a contract-based license (ARL OSL 
or any other) can reach through the iterations of free software in the absence 
of contractual privity. But anyway, why bother? Most licenses, including the 
Apache License, now are direct from the copyright owner to each licensee, 
avoiding that legal privity problem and making their non-warranties directly 
enforceable. 

 

Being "forced to stop via contract law" is and remains a complex litigation 
issue between a copyright owner and her licensee. Reference, just for fun, the 
Oracle vs. Google case.

 

in the case of US government works, the "fall back onto copyright law" is 
unenforceable, at least in the U.S. Why do you even care what happens to those 
works under the Berne Convention in other countries? 

 

/Larry

 

 

-Original Message-
From: Karan, Cem F CIV USARMY RDECOM ARL (US) [mailto:cem.f.karan@mail.mil] 
Sent: Friday, August 5, 2016 1:00 PM
To: license-discuss@opensource.org
Subject: Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory 
Open Source License proposal

 

If by 'restrict' you mean 'comply with the terms of the ARL OSL', then I agree 
with you.  Remember, the only reason we're pursuing the ARL OSL is because the 
vast majority of our work has no copyright, and therefore can't be licensed 
under the standard licenses.  If we could, we'd drop the ARL OSL and use Apache 
2.0 instead (I've floated the idea of an Apache 2.1 or 3.0 that addressed the 
copyright issue on the ASF Legal Discuss mailing list, but haven't had any 
interest yet).  By the way, the Apache 2.0 license is fairly permissive; in 
practice, it just prevents bad actors from abusing IP and copyright law in a 
manner similar to what happened with Rambus (see  
<https://en.wikipedia.org/wiki/Rambus#Lawsuits> 
https://en.wikipedia.org/wiki/Rambus#Lawsuits), along with the usual 
disclaimers against liability and warranty.

 

As for whether or not the ARL OSL is enforceable... we won't know until it's 
been litigated.  The theory for contract-based licenses like the ARL OSL is 
that either a) everyone keeps to the terms of the license (forming a chain), or 
b) if someone breaks the terms, they have broken the contract with their 
immediate predecessor in the chain of contracts, and by induction, with 
everyone else in the chain.  Since they've broken the contract, they no longer 
have the right to use the software, and can be forced to stop via contract law. 
 Moreover, if the contract has been written correctly, it can fall back onto 
copyright law, in which case anyone that has licensed their work via copyright 
can also sue.  This is what the ARL OSL is trying to allow; while the USG may 
not have standing, contributors to a project may have standing, and may wish to 
enforce their copyright on the contract breaker.

 

Berne convention: I am working to contact the appropriate officials within the 
US Department of Justice to find case law pertaining to copyright on USG works 
in foreign courts.  However, the lawyers involved are generally attached to the 
US embassies that they litigate in, so time zones are an issue.  As and when I 
find case law discussing this problem, I'll bring to everyone's attention.

 

Thanks,

Cem Karan

 

> -Original Message-

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

> On Behalf Of Maarten Zeinstra

> Sent: Wednesday, August 03, 2016 9:30 AM

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

> Cc:  <mailto:lro...@rosenlaw.com> lro...@rosenlaw.com

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

> Laboratory Open Source License proposal

> 

> All active links contained in this email were disabled. Please verify 

> the identity of the sender, and confirm the authenticity of all links 
> contained within the message prior to copying and pasting the address to a 
> Web browser.

> 

> 

> 

Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

[Kevin Fleming]

Thanks for summarizing; I think you and I agree :-)

I cannot envision any sort of contract which is designed to allow access to
the code, with modification, distribution, derivation, and other
permissions, but which also allows the USG to enforce any sort of
restrictions on those activities (given the lack of copyright). I'm not a
lawyer, but having been involved on both sides of dozens of open source
licenses, I know what I (and my employer) would be able to understand and
accept, and as a result I don't see how such a contract would do anything
but interfere with adoption of the software covered by it.

If, as has been mentioned, there are patents and/or trademarks involved,
then a contract which clearly addresses those aspects, and only those
aspects, would make much more sense.

On Wed, Aug 3, 2016 at 9:29 AM, Maarten Zeinstra <m...@kl.nl> wrote:

> Hi Kevin and Cem,
>
> I think the confusion here is indeed about ownership vs, access, As I
> understand Cem’s project he wants to provide access to third parties to its
> code and wants to ‘license’ it. However open source license (afaik) deal
> with the ownership part of the code and does not deal in restricting access
> to the code.
>
> I think Cem is indeed on the right track with #3 in his reply. You cannot
> rely on copyright, you could only focus on any patent aspects of open
> source license. Coming from the Creative Commons world, I do not know about
> patents in Open Source licenses.
>
>  I also think that is near impossible to enforce access limiting contracts
> in a one-to-all way. I wrote an opinion about a related situation about the
> New York Metropolitan Museum that provided free downloads of its public
> domain images but restricted those downloads to non-commercial use:
> https://www.kl.nl/en/opinion/why-the-met-does-not-open-any-real-doors/ (tl;dr:
> you cannot enforce general rules about free downloads, and it is a bad
> practise to try to do so).
>
> the USG cannot enforce open source license as they have no underlying
> copyright, any contract drafted that is similar to an open source license
> without the licensing of copyright and limiting the access or reuse of the
> work should not be considered a open source license and fall into the
> category of bad practise.
>
> Re: Berne Convention. Sure Page Miller is right. But try and proof me
> wrong :) but no country in the world has a paragraph in their national
> copyright act that provides the USG with copyright where they do not hold
> that nationally. They would rely on the absence of formalities but that
> means you do need in a rights holder in the country of origine, which does
> not exist.
>
> Regards,
>
> Maarten
>
> --
> Kennisland | www.kl.nl | t +31205756720 | m +31643053919 | @mzeinstra
>
> On 03 Aug 2016, at 15:17, Karan, Cem F CIV USARMY RDECOM ARL (US) <
> cem.f.karan@mail.mil> wrote:
>
> I just got off the phone with Page Miller in the US Copyright office (
> http://www.copyright.gov/).  She is the person at the USG that
> specializes in these types of questions.  She told me that the Berne
> convention does not change laws in individual countries, it just removes
> certain formalities.  As such, if the foreign government permits the USG to
> hold copyright in the foreign country, then the USG is permitted to do so.
> You can contact the copyright office at copyi...@loc.gov.  If you put in
> a line like 'Attention: Page Miller', it will get routed to her to answer.
>
> So, the very latest position of the USG is that it can apply for copyright
> protections for USG-produced works that have no copyright within the US.
>
> Thanks,
> Cem Karan
>
> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org
> <license-discuss-boun...@opensource.org>] On Behalf Of Maarten Zeinstra
> Sent: Monday, August 01, 2016 4:36 AM
> To: license-discuss@opensource.org
> Cc: lro...@rosenlaw.com
> Subject: Re: [License-discuss] [Non-DoD Source] Re: US Army Research
> Laboratory Open Source License proposal
>
> All active links contained in this email were disabled. Please verify the
> identity of the sender, and confirm the authenticity of all links
> contained within the message prior to copying and pasting the address to a
> Web browser.
>
>
> 
>
>
>
> I did some further investigating into this. The sources that I and John
> refer to are from 1976, which is pre-Berne (US in force: March 1,
> 1989). So this would further cast doubts on the claims of copyright abroad
> of the US government.
>
> Regards,
>
> Maarten
>
>
>
> --
> Kennisland | Caution-www.kl.nl <http://caution-www.kl.nl> <
> Caution-http://www.kl.nl >

Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

[Christopher Sean Morrison]

Very interesting write-up, Maarten.  Thanks for writing and sharing it!

The MET PD image database is pretty awesome work on their part.  I referenced 
some materials from there a couple month myself despite not noticing they put 
an NC clause on it.  Personally, I can’t imagine them having standing if they 
tried to take anyone to court.  I agree that it’s “bad practice” but mostly 
because it creates marketplace confusion and doesn’t conform with the OSD.

The difference here, I think, is that the contract/license is not aiming to 
restrict access or use of the code.  On the contrary, it establishes terms on 
contributors (e.g., similar to a CLA) and explicitly disavows liability.  The 
prior doesn’t require copyright and recursively applies.  The latter is 
arguably unnecessary, but not harmful or restrictive.

The question in my mind is whether any of the other requirements in the 
contract/license are essentially unenforceable because of the lack of rights.  
In ASL2’s terms,  that could be Clause 4 (Redistribution).  The end result of 
being unenforcible would merely wipe attribution but I’d expect the rest to 
remain intact.

Cheers!
Sean
 


> On Aug 3, 2016, at 9:29 AM, Maarten Zeinstra <m...@kl.nl> wrote:
> 
> Hi Kevin and Cem,
> 
> I think the confusion here is indeed about ownership vs, access, As I 
> understand Cem’s project he wants to provide access to third parties to its 
> code and wants to ‘license’ it. However open source license (afaik) deal with 
> the ownership part of the code and does not deal in restricting access to the 
> code.
> 
> I think Cem is indeed on the right track with #3 in his reply. You cannot 
> rely on copyright, you could only focus on any patent aspects of open source 
> license. Coming from the Creative Commons world, I do not know about patents 
> in Open Source licenses.
> 
>  I also think that is near impossible to enforce access limiting contracts in 
> a one-to-all way. I wrote an opinion about a related situation about the New 
> York Metropolitan Museum that provided free downloads of its public domain 
> images but restricted those downloads to non-commercial use: 
> https://www.kl.nl/en/opinion/why-the-met-does-not-open-any-real-doors/ 
> <https://www.kl.nl/en/opinion/why-the-met-does-not-open-any-real-doors/> 
> (tl;dr: you cannot enforce general rules about free downloads, and it is a 
> bad practise to try to do so).
> 
> the USG cannot enforce open source license as they have no underlying 
> copyright, any contract drafted that is similar to an open source license 
> without the licensing of copyright and limiting the access or reuse of the 
> work should not be considered a open source license and fall into the 
> category of bad practise. 
> 
> Re: Berne Convention. Sure Page Miller is right. But try and proof me wrong 
> :) but no country in the world has a paragraph in their national copyright 
> act that provides the USG with copyright where they do not hold that 
> nationally. They would rely on the absence of formalities but that means you 
> do need in a rights holder in the country of origine, which does not exist.
> 
> Regards,
> 
> Maarten
> 
> --
> Kennisland | www.kl.nl <http://www.kl.nl/> | t +31205756720 | m +31643053919 
> | @mzeinstra
> 
>> On 03 Aug 2016, at 15:17, Karan, Cem F CIV USARMY RDECOM ARL (US) 
>> <cem.f.karan@mail.mil <mailto:cem.f.karan@mail.mil>> wrote:
>> 
>> I just got off the phone with Page Miller in the US Copyright office 
>> (http://www.copyright.gov/ <http://www.copyright.gov/>).  She is the person 
>> at the USG that specializes in these types of questions.  She told me that 
>> the Berne convention does not change laws in individual countries, it just 
>> removes certain formalities.  As such, if the foreign government permits the 
>> USG to hold copyright in the foreign country, then the USG is permitted to 
>> do so.  You can contact the copyright office at copyi...@loc.gov 
>> <mailto:copyi...@loc.gov>.  If you put in a line like 'Attention: Page 
>> Miller', it will get routed to her to answer.
>> 
>> So, the very latest position of the USG is that it can apply for copyright 
>> protections for USG-produced works that have no copyright within the US.
>> 
>> Thanks,
>> Cem Karan
>> 
>>> -Original Message-
>>> From: License-discuss [mailto:license-discuss-boun...@opensource.org 
>>> <mailto:license-discuss-boun...@opensource.org>] On Behalf Of Maarten 
>>> Zeinstra
>>> Sent: Monday, August 01, 2016 4:36 AM
>>> To: license-discuss@opensource.org <mailto:license-discuss@opensource.org>
>>> Cc: lro...@rosenlaw.com <mailto:

Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

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

If by 'restrict' you mean 'comply with the terms of the ARL OSL', then I agree 
with you.  Remember, the only reason we're pursuing the ARL OSL is because the 
vast majority of our work has no copyright, and therefore can't be licensed 
under the standard licenses.  If we could, we'd drop the ARL OSL and use Apache 
2.0 instead (I've floated the idea of an Apache 2.1 or 3.0 that addressed the 
copyright issue on the ASF Legal Discuss mailing list, but haven't had any 
interest yet).  By the way, the Apache 2.0 license is fairly permissive; in 
practice, it just prevents bad actors from abusing IP and copyright law in a 
manner similar to what happened with Rambus (see 
https://en.wikipedia.org/wiki/Rambus#Lawsuits), along with the usual 
disclaimers against liability and warranty.

As for whether or not the ARL OSL is enforceable... we won't know until it's 
been litigated.  The theory for contract-based licenses like the ARL OSL is 
that either a) everyone keeps to the terms of the license (forming a chain), or 
b) if someone breaks the terms, they have broken the contract with their 
immediate predecessor in the chain of contracts, and by induction, with 
everyone else in the chain.  Since they've broken the contract, they no longer 
have the right to use the software, and can be forced to stop via contract law. 
 Moreover, if the contract has been written correctly, it can fall back onto 
copyright law, in which case anyone that has licensed their work via copyright 
can also sue.  This is what the ARL OSL is trying to allow; while the USG may 
not have standing, contributors to a project may have standing, and may wish to 
enforce their copyright on the contract breaker.

Berne convention: I am working to contact the appropriate officials within the 
US Department of Justice to find case law pertaining to copyright on USG works 
in foreign courts.  However, the lawyers involved are generally attached to the 
US embassies that they litigate in, so time zones are an issue.  As and when I 
find case law discussing this problem, I'll bring to everyone's attention.

Thanks,
Cem Karan

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Maarten Zeinstra
> Sent: Wednesday, August 03, 2016 9:30 AM
> To: license-discuss@opensource.org
> Cc: lro...@rosenlaw.com
> Subject: Re: [License-discuss] [Non-DoD Source] Re: US Army Research 
> Laboratory Open Source License proposal
> 
> All active links contained in this email were disabled. Please verify the 
> identity of the sender, and confirm the authenticity of all links
> contained within the message prior to copying and pasting the address to a 
> Web browser.
> 
> 
> 
> 
> 
> 
> Hi Kevin and Cem,
> 
> I think the confusion here is indeed about ownership vs, access, As I 
> understand Cem’s project he wants to provide access to third parties
> to its code and wants to ‘license’ it. However open source license (afaik) 
> deal with the ownership part of the code and does not deal in
> restricting access to the code.
> 
> I think Cem is indeed on the right track with #3 in his reply. You cannot 
> rely on copyright, you could only focus on any patent aspects of
> open source license. Coming from the Creative Commons world, I do not know 
> about patents in Open Source licenses.
> 
>  I also think that is near impossible to enforce access limiting contracts in 
> a one-to-all way. I wrote an opinion about a related situation
> about the New York Metropolitan Museum that provided free downloads of its 
> public domain images but restricted those downloads to
> non-commercial use: 
> Caution-https://www.kl.nl/en/opinion/why-the-met-does-not-open-any-real-doors/
>  < Caution-
> https://www.kl.nl/en/opinion/why-the-met-does-not-open-any-real-doors/ >  
> (tl;dr: you cannot enforce general rules about free
> downloads, and it is a bad practise to try to do so).
> 
> the USG cannot enforce open source license as they have no underlying 
> copyright, any contract drafted that is similar to an open source
> license without the licensing of copyright and limiting the access or reuse 
> of the work should not be considered a open source license and
> fall into the category of bad practise.
> 
> Re: Berne Convention. Sure Page Miller is right. But try and proof me wrong 
> :) but no country in the world has a paragraph in their
> national copyright act that provides the USG with copyright where they do not 
> hold that nationally. They would rely on the absence of
> formalities but that means you do need in a rights holder in the country of 
> origine, which does not exist.
> 
> Regards,
> 
> Maarten
> 
> --
> Kennisland | Caution-www.kl.nl < Caution-http://www.kl.nl >  | t +3120575672

Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

[Maarten Zeinstra]

Hi Kevin and Cem,

I think the confusion here is indeed about ownership vs, access, As I 
understand Cem’s project he wants to provide access to third parties to its 
code and wants to ‘license’ it. However open source license (afaik) deal with 
the ownership part of the code and does not deal in restricting access to the 
code.

I think Cem is indeed on the right track with #3 in his reply. You cannot rely 
on copyright, you could only focus on any patent aspects of open source 
license. Coming from the Creative Commons world, I do not know about patents in 
Open Source licenses.

 I also think that is near impossible to enforce access limiting contracts in a 
one-to-all way. I wrote an opinion about a related situation about the New York 
Metropolitan Museum that provided free downloads of its public domain images 
but restricted those downloads to non-commercial use: 
https://www.kl.nl/en/opinion/why-the-met-does-not-open-any-real-doors/ 
<https://www.kl.nl/en/opinion/why-the-met-does-not-open-any-real-doors/> 
(tl;dr: you cannot enforce general rules about free downloads, and it is a bad 
practise to try to do so).

the USG cannot enforce open source license as they have no underlying 
copyright, any contract drafted that is similar to an open source license 
without the licensing of copyright and limiting the access or reuse of the work 
should not be considered a open source license and fall into the category of 
bad practise. 

Re: Berne Convention. Sure Page Miller is right. But try and proof me wrong :) 
but no country in the world has a paragraph in their national copyright act 
that provides the USG with copyright where they do not hold that nationally. 
They would rely on the absence of formalities but that means you do need in a 
rights holder in the country of origine, which does not exist.

Regards,

Maarten

--
Kennisland | www.kl.nl <http://www.kl.nl/> | t +31205756720 | m +31643053919 | 
@mzeinstra

> On 03 Aug 2016, at 15:17, Karan, Cem F CIV USARMY RDECOM ARL (US) 
> <cem.f.karan@mail.mil> wrote:
> 
> I just got off the phone with Page Miller in the US Copyright office 
> (http://www.copyright.gov/).  She is the person at the USG that specializes 
> in these types of questions.  She told me that the Berne convention does not 
> change laws in individual countries, it just removes certain formalities.  As 
> such, if the foreign government permits the USG to hold copyright in the 
> foreign country, then the USG is permitted to do so.  You can contact the 
> copyright office at copyi...@loc.gov.  If you put in a line like 'Attention: 
> Page Miller', it will get routed to her to answer.
> 
> So, the very latest position of the USG is that it can apply for copyright 
> protections for USG-produced works that have no copyright within the US.
> 
> Thanks,
> Cem Karan
> 
>> -Original Message-
>> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
>> Behalf Of Maarten Zeinstra
>> Sent: Monday, August 01, 2016 4:36 AM
>> To: license-discuss@opensource.org
>> Cc: lro...@rosenlaw.com
>> Subject: Re: [License-discuss] [Non-DoD Source] Re: US Army Research 
>> Laboratory Open Source License proposal
>> 
>> All active links contained in this email were disabled. Please verify the 
>> identity of the sender, and confirm the authenticity of all links
>> contained within the message prior to copying and pasting the address to a 
>> Web browser.
>> 
>> 
>> 
>> 
>> 
>> 
>> I did some further investigating into this. The sources that I and John 
>> refer to are from 1976, which is pre-Berne (US in force: March 1,
>> 1989). So this would further cast doubts on the claims of copyright abroad 
>> of the US government.
>> 
>> Regards,
>> 
>> Maarten
>> 
>> 
>> 
>> --
>> Kennisland | Caution-www.kl.nl < Caution-http://www.kl.nl >  | t 
>> +31205756720 | m +31643053919 | @mzeinstra
>> 
>> 
>>  On 01 Aug 2016, at 10:20, Maarten Zeinstra <m...@kl.nl < 
>> Caution-mailto:m...@kl.nl > > wrote:
>> 
>>  Hi Cem,
>> 
>>  I believe this was already answered John Cowan, I was proven wrong. US 
>> does assert copyright for government works in other
>> jurisdictions. Wikipedia provides these sources:
>> 
>>  “The prohibition on copyright protection for United States Government 
>> works is not intended to have any effect on protection of
>> these works abroad. Works of the governments of most other countries are 
>> copyrighted. There are no valid policy reasons for denying
>> such protection to United States Government works in foreign countries, or 
>> for

Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

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

OK, so there is a possibility that there is no copyright in foreign (to the 
US) countries because such countries may choose to interpret the Berne 
convention in that manner.  That suggests to me that the USG needs a 
contract-based license even more than it already did, otherwise there may be 
additional headaches for the USG in non-US territories.  Are there any 
disagreements with this?

Thanks,
Cem Karan

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Maarten Zeinstra
> Sent: Wednesday, August 03, 2016 2:02 PM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: US Army Research 
> Laboratory Open Source License proposal
>
> All active links contained in this email were disabled. Please verify the 
> identity of the sender, and confirm the authenticity of all links
> contained within the message prior to copying and pasting the address to a 
> Web browser.
>
>
> 
>
>
>
>
> --
> Kennisland | Caution-www.kl.nl < Caution-http://www.kl.nl >  | t 
> +31205756720 | m +31643053919 | @mzeinstra
>
>
>   On 03 Aug 2016, at 19:42, Karan, Cem F CIV USARMY RDECOM ARL (US) 
> <cem.f.karan@mail.mil < Caution-
> mailto:cem.f.karan@mail.mil > > wrote:
>
>
>   -Original Message-
>   From: License-discuss 
> [Caution-mailto:license-discuss-boun...@opensource.org < 
> Caution-mailto:license-discuss-
> boun...@opensource.org > ] On
>   Behalf Of John Cowan
>   Sent: Wednesday, August 03, 2016 11:39 AM
>       To: license-discuss@opensource.org < 
> Caution-mailto:license-discuss@opensource.org >
>   Subject: Re: [License-discuss] [Non-DoD Source] Re: US Army 
> Research
>   Laboratory Open Source License proposal
>
>   Karan, Cem F CIV USARMY RDECOM ARL (US) scripsit:
>
>
>
>   A copyright-based license may work outside of the US 
> because the USG
>   would (probably) have copyright protections there?
>
>
>
>   Depending solely on local law, so there is no uniform answer.
>
>
>
>   Yes, which is why I said 'may'.  It has to be litigated in each 
> jurisdiction
>   to know for certain how it will go.
>
>
>
>   As far as I know, this hasn't been litigated anywhere, 
> so it may not
>   apply.
>
>
>
>   That wouldn't matter if there was an explicit or implicit 
> statutory grant 
> in
>   the foreign country.  If only the Berne Convention holds, then
>   the "We give you 0 years because you give yourself 0 years" 
> argument kicks
>   in.
>
>
>
>   I see what you're saying, and it's an interesting point of view.  Are 
> there
>   any countries that are signatories to the Berne Convention that hold 
> this
>   point of view?
>
>
>
> Most likely all of them when it comes down to a court case, but as you said 
> there is no known case law here.
>
>
>
>   Interesting link!  I wish it weren't behind a paywall, 
> I'd like to
>   read more of it.
>
>
>
>   Me too.  Ask a lawyer friend to send you a copy (and me, while 
> you're at
>   it).
>   My father's preprint copy moldered away a long time ago.
>
>
>
>   What, and violate copyright, the very thing we're discussing right now? 
> ;)
>
>   Thanks,
>   Cem Karan
>   ___
>   License-discuss mailing list
>   License-discuss@opensource.org < 
> Caution-mailto:License-discuss@opensource.org >
> 
> Caution-https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss
>
>



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Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

[Maarten Zeinstra]

--
Kennisland | www.kl.nl <http://www.kl.nl/> | t +31205756720 | m +31643053919 | 
@mzeinstra

> On 03 Aug 2016, at 19:42, 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 John Cowan
>> Sent: Wednesday, August 03, 2016 11:39 AM
>> To: license-discuss@opensource.org
>> Subject: Re: [License-discuss] [Non-DoD Source] Re: US Army Research 
>> Laboratory Open Source License proposal
>> 
>> Karan, Cem F CIV USARMY RDECOM ARL (US) scripsit:
>> 
>>> A copyright-based license may work outside of the US because the USG
>>> would (probably) have copyright protections there?
>> 
>> Depending solely on local law, so there is no uniform answer.
> 
> Yes, which is why I said 'may'.  It has to be litigated in each jurisdiction 
> to know for certain how it will go.
> 
>>> As far as I know, this hasn't been litigated anywhere, so it may not 
>>> apply.
>> 
>> That wouldn't matter if there was an explicit or implicit statutory grant in 
>> the foreign country.  If only the Berne Convention holds, then
>> the "We give you 0 years because you give yourself 0 years" argument kicks 
>> in.
> 
> I see what you're saying, and it's an interesting point of view.  Are there 
> any countries that are signatories to the Berne Convention that hold this 
> point of view?

Most likely all of them when it comes down to a court case, but as you said 
there is no known case law here.

> 
>>> Interesting link!  I wish it weren't behind a paywall, I'd like to
>>> read more of it.
>> 
>> Me too.  Ask a lawyer friend to send you a copy (and me, while you're at 
>> it).
>> My father's preprint copy moldered away a long time ago.
> 
> What, and violate copyright, the very thing we're discussing right now? ;)
> 
> Thanks,
> Cem Karan
> ___
> License-discuss mailing list
> License-discuss@opensource.org
> https://lists.opensource.org/cgi-bin/mailman/listinfo/license-discuss

___
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Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

[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: Wednesday, August 03, 2016 11:39 AM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: US Army Research 
> Laboratory Open Source License proposal
>
> Karan, Cem F CIV USARMY RDECOM ARL (US) scripsit:
>
> > A copyright-based license may work outside of the US because the USG
> > would (probably) have copyright protections there?
>
> Depending solely on local law, so there is no uniform answer.

Yes, which is why I said 'may'.  It has to be litigated in each jurisdiction 
to know for certain how it will go.

> > As far as I know, this hasn't been litigated anywhere, so it may not 
> > apply.
>
> That wouldn't matter if there was an explicit or implicit statutory grant in 
> the foreign country.  If only the Berne Convention holds, then
> the "We give you 0 years because you give yourself 0 years" argument kicks 
> in.

I see what you're saying, and it's an interesting point of view.  Are there 
any countries that are signatories to the Berne Convention that hold this 
point of view?

> > Interesting link!  I wish it weren't behind a paywall, I'd like to
> > read more of it.
>
> Me too.  Ask a lawyer friend to send you a copy (and me, while you're at 
> it).
> My father's preprint copy moldered away a long time ago.

What, and violate copyright, the very thing we're discussing right now? ;)

Thanks,
Cem Karan


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Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

[John Cowan]

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

> A copyright-based license may work outside of the US because the USG
> would (probably) have copyright protections there?

Depending solely on local law, so there is no uniform answer.

> As far as I know, this hasn't been litigated anywhere, so it may not apply.

That wouldn't matter if there was an explicit or implicit statutory grant
in the foreign country.  If only the Berne Convention holds, then the
"We give you 0 years because you give yourself 0 years" argument kicks in.

> Interesting link!  I wish it weren't behind a paywall, I'd like to read more 
> of it.

Me too.  Ask a lawyer friend to send you a copy (and me, while you're at it).
My father's preprint copy moldered away a long time ago.

-- 
John Cowan  http://www.ccil.org/~cowanco...@ccil.org
Business before pleasure, if not too bloomering long before.
--Nicholas van Rijn
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Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

[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: Wednesday, August 03, 2016 9:57 AM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: US Army Research 
> Laboratory Open Source License proposal
>
> Karan, Cem F CIV USARMY RDECOM ARL (US) scripsit:
>
> > She told me that the Berne convention does not change laws in
> > individual countries, it just removes certain formalities.  As such,
> > if the foreign government permits the USG to hold copyright in the
> > foreign country, then the USG is permitted to do so.
>
> Exactly.  In general, whether a foreign person (in the legal sense) A has 
> rights in country B depends only on the laws in country B, which of
> course include any international treaties that B has signed.  The laws of B 
> may make reference in particular cases to the laws of A's
> country, or any other country, of course.  But they don't have to, which is 
> what makes conflicts cases so interesting to a sufficiently geeky
> mind.  And a country can certainly grant more rights to A than a treaty 
> requires it to.

OK, so we're in agreement then?  A copyright-based license may work outside of 
the US because the USG would (probably) have copyright protections there?  As 
far as I know, this hasn't been litigated anywhere, so it may not apply.

So, all we're left with dealing with is within the USA...

> See T. A. Cowan, "Marks of Primitivity in the Conflict of Laws",
> 26 Rutgers L. Rev. 191 (1972-1973), online at  http://heinonline.org/HOL/LandingPage?handle=hein.journals/rutlr26=16==>
> IANAL, but I am interested in law by jus sanguinis.  :-)

Interesting link!  I wish it weren't behind a paywall, I'd like to read more 
of it.

Thanks,
Cem Karan



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Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

[John Cowan]

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

> She told me that the Berne convention does not change laws in individual
> countries, it just removes certain formalities.  As such, if the foreign
> government permits the USG to hold copyright in the foreign country,
> then the USG is permitted to do so.

Exactly.  In general, whether a foreign person (in the legal sense) A
has rights in country B depends only on the laws in country B, which of
course include any international treaties that B has signed.  The laws
of B may make reference in particular cases to the laws of A's country,
or any other country, of course.  But they don't have to, which is what
makes conflicts cases so interesting to a sufficiently geeky mind.  And a
country can certainly grant more rights to A than a treaty requires it to.

See T. A. Cowan, "Marks of Primitivity in the Conflict of Laws",
26 Rutgers L. Rev. 191 (1972-1973), online at

IANAL, but I am interested in law by jus sanguinis.  :-)

-- 
John Cowan  http://www.ccil.org/~cowanco...@ccil.org
There is a Darwinian explanation for the refusal to accept Darwin.
Given the very pessimistic conclusions about moral purpose to which his
theory drives us, and given the importance of a sense of moral purpose
in helping us cope with life, a refusal to believe Darwin's theory may
have important survival value. --Ian Johnston
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Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

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

Hi all, Karl Fogel on the mil-oss (http://www.mil-oss.org/) mailing list made 
a suggestion that might be the solution.  Would the Apache foundation be 
willing to work on Apache 2.1, or maybe 3.0, incorporating changes as needed 
to cover works that don't have copyright attached to them?  If that were 
possible, we wouldn't need the ARL OSL at all.

Thanks,
Cem Karan

 U.S. Army Research Laboratory Open Source License (ARL OSL)
   Version 0.4.0, July 2016
http://no/URL/as/yet

   TERMS AND CONDITIONS FOR USE, REPRODUCTION, AND DISTRIBUTION

   1. Definitions.

  "License" shall mean the terms and conditions for use, reproduction,
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  "Licensor" shall mean the project originator or entity authorized by
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  "Legal Entity" shall mean the union of the acting entity and all
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  "You" (or "Your") shall mean an individual or Legal Entity
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  "Object" form shall mean any form resulting from mechanical
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  "Work" shall mean the work of authorship, whether in Source or
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  (an example is provided in the Appendix below).

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  form, that is based on (or derived from) the Work and for which the
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  represent, as a whole, an original work of authorship. For the purposes
  of this License, Derivative Works shall not include works that remain
  separable from, or merely link (or bind by name) to the interfaces of,
  the Work and Derivative Works thereof.

  "Contribution" shall mean any work of authorship, including
  the original version of the Work and any modifications or additions
  to that Work or Derivative Works thereof, that is intentionally
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  or by an individual or Legal Entity authorized to submit on behalf of
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  "Contributor" shall mean Licensor and any individual or Legal Entity
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   2. Grant of Copyright License. Subject to the terms and conditions of
  this License, where copyright exists, each Contributor hereby grants to 
You a perpetual,
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Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

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

The ARL (and the USG in general) can still have both patent rights and 
trademark rights.  Violate either, and the USG could bring suit on its own 
behalf.  Moreover, while USG-generated works don't have copyright, that doesn't 
mean there is no copyright; contractors and others may choose to assign their 
copyright to the USG, in which case the ARL OSL will provide a license for that 
material as well.  Finally, once a project starts accepting contributions, 
contributors may have copyright.  They are licensing their material under the 
ARL OSL.  Even if the USG doesn't have standing to bring a suit, those other 
contributors may wish to.  

Taken together, it isn't just the USG by itself, its everything bundled 
together.

Thanks,
Cem Karan

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Kevin Fleming
> Sent: Wednesday, August 03, 2016 9:07 AM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: US Army Research 
> Laboratory Open Source License proposal
> 
> All active links contained in this email were disabled. Please verify the 
> identity of the sender, and confirm the authenticity of all links
> contained within the message prior to copying and pasting the address to a 
> Web browser.
> 
> 
> 
> 
> 
> 
> Maybe I'm just being naive here, but if the USG does not hold copyright on 
> this code (in the US), what ownership rights does it have? As
> far as I know there are no other relevant intellectual property rights 
> involved here, since it's clearly not a trade secret, and patents are not
> involved. There could be trademarks involved as has been mentioned in other 
> parts of the thread, but otherwise it's difficult to understand
> what the USG would be licensing to anyone, since the USG has no ownership. 
> What would be the basis for the USG bringing suit against
> someone for violating the license, if that were to occur?
> 
> 
> On Wed, Aug 3, 2016 at 8:31 AM, Karan, Cem F CIV USARMY RDECOM ARL (US) 
> <cem.f.karan@mail.mil < Caution-
> mailto:cem.f.karan@mail.mil > > wrote:
> 
> 
>   Marten, I don't have any case law regarding this, but the ARL Legal 
> team does hold that the US can assert copyright outside of the
> US.
> 
>   As for the part about being void, I spend quite a bit of time talking 
> things over with the lawyers in the ARL Legal office.  Here is
> what they said:
> 
>   1) A license is a contract. The USG can enter into and enforce 
> contracts. Thus, the USG can enforce a license by going to court, etc.
> It can also defend itself in court based on a license (e.g., to defend 
> against claims of warranty, etc.).
> 
>   2) Copyright is an entirely separate issue.  Copyright can be used as 
> another mechanism to enforce the terms of a contract, but
> copyright is not a contract.
> 
>   3) The USG does not permit itself to have copyright within the US on 
> USG generated works.  Thus, a contract (or license) whose
> provisions are only enforceable by copyright assertions falls apart for the 
> USG.
> 
>   Taken together, if the USG used something like the Apache 2.0 license 
> on work that it generated that didn't have copyright, then
> the license would be null and void.  However, if the license was a contract, 
> and relied on more than just copyright protections, then the
> license would still be valid and enforceable.  Unless someone up our chain of 
> command states that it's OK to use one of the standard
> licenses, we need something that works for us.  This is not just to protect 
> the USG from liability claims, or patent infringement claims; it's
> also to protect anyone that uses USG-furnished code.  I don't have any case 
> law showing this has happened with USG-furnished code, but I
> know similar things have happened in the private sector, e.g. Rambus 
> (Caution-https://en.wikipedia.org/wiki/Rambus#Lawsuits < Caution-
> https://en.wikipedia.org/wiki/Rambus#Lawsuits > ).
> 
>   Thanks,
>   Cem Karan
> 
>   > -Original Message-
>   > From: License-discuss 
> [Caution-mailto:license-discuss-boun...@opensource.org < 
> Caution-mailto:license-discuss-
> boun...@opensource.org > ] On Behalf Of Maarten Zeinstra
>   > Sent: Monday, August 01, 2016 4:21 AM
>   > To: license-discuss@opensource.org < 
> Caution-mailto:license-discuss@opensource.org >
>   > Cc: lro...@rosenlaw.com < Caution-mailto:lro...@rosenlaw.com >
>   > Subject: Re: [License-discuss] [Non-DoD Source] Re: US Army Research 
>

Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

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

Marten, I don't have any case law regarding this, but the ARL Legal team does 
hold that the US can assert copyright outside of the US.

As for the part about being void, I spend quite a bit of time talking things 
over with the lawyers in the ARL Legal office.  Here is what they said:

1) A license is a contract. The USG can enter into and enforce contracts. Thus, 
the USG can enforce a license by going to court, etc.  It can also defend 
itself in court based on a license (e.g., to defend against claims of warranty, 
etc.).

2) Copyright is an entirely separate issue.  Copyright can be used as another 
mechanism to enforce the terms of a contract, but copyright is not a contract.  

3) The USG does not permit itself to have copyright within the US on USG 
generated works.  Thus, a contract (or license) whose provisions are only 
enforceable by copyright assertions falls apart for the USG.  

Taken together, if the USG used something like the Apache 2.0 license on work 
that it generated that didn't have copyright, then the license would be null 
and void.  However, if the license was a contract, and relied on more than just 
copyright protections, then the license would still be valid and enforceable.  
Unless someone up our chain of command states that it's OK to use one of the 
standard licenses, we need something that works for us.  This is not just to 
protect the USG from liability claims, or patent infringement claims; it's also 
to protect anyone that uses USG-furnished code.  I don't have any case law 
showing this has happened with USG-furnished code, but I know similar things 
have happened in the private sector, e.g. Rambus 
(https://en.wikipedia.org/wiki/Rambus#Lawsuits).  

Thanks,
Cem Karan

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Maarten Zeinstra
> Sent: Monday, August 01, 2016 4:21 AM
> To: license-discuss@opensource.org
> Cc: lro...@rosenlaw.com
> Subject: Re: [License-discuss] [Non-DoD Source] Re: US Army Research 
> Laboratory Open Source License proposal
> 
> All active links contained in this email were disabled. Please verify the 
> identity of the sender, and confirm the authenticity of all links
> contained within the message prior to copying and pasting the address to a 
> Web browser.
> 
> 
> 
> 
> 
> 
> Hi Cem,
> 
> I believe this was already answered John Cowan, I was proven wrong. US does 
> assert copyright for government works in other
> jurisdictions. Wikipedia provides these sources:
> 
> “The prohibition on copyright protection for United States Government works 
> is not intended to have any effect on protection of these
> works abroad. Works of the governments of most other countries are 
> copyrighted. There are no valid policy reasons for denying such
> protection to United States Government works in foreign countries, or for 
> precluding the Government from making licenses for the use of
> its works abroad.” - House Report No. 94-1476
> 
> and
> 
> “3.1.7  Does the Government have copyright protection in U.S. Government 
> works in other countries?
> Yes, the copyright exclusion for works of the U.S. Government is not intended 
> to have any impact on protection of these works abroad (S.
> REP. NO. 473, 94th Cong., 2d Sess. 56 (1976)). Therefore, the U.S. Government 
> may obtain protection in other countries depending on the
> treatment of government works by the national copyright law of the particular 
> country. Copyright is sometimes asserted by U.S.
> Government agencies outside the United States.” 
> Caution-http://www.cendi.gov/publications/04-8copyright.html#317 < Caution-
> http://www.cendi.gov/publications/04-8copyright.html#317 >
> 
> However I am not sure how this would work with the Berne Convention, 
> especially article 7(8) which states: ‘[..] the term shall be
> governed by the legislation of the country where protection is claimed; 
> however, unless the legislation of that country otherwise provides,
> the term shall not exceed the term fixed in the country of origin of the 
> work.’ If the U.S. term of protection is 0 years, than other countries
> would also apply 0 years.
> 
> @John, @Cem: do you have some case law about this? I would like to verify 
> this with my academic network in the U.S. If not, any license
> you want to apply on this material is immediately void (which is only a 
> theoretical problem imo).
> 
> Regards,
> 
> Maarten
> 
> --
> Kennisland | Caution-www.kl.nl < Caution-http://www.kl.nl >  | t +31205756720 
> | m +31643053919 | @mzeinstra
> 
> 
>   On 29 Jul 2016, at 19:37, Karan, Cem F CIV USARMY RDECOM ARL (US) 
> <cem.f.karan@mail.mil < Caution-
> mailto:cem.f.karan

Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

[Maarten Zeinstra]

I did some further investigating into this. The sources that I and John refer 
to are from 1976, which is pre-Berne (US in force: March 1, 1989). So this 
would further cast doubts on the claims of copyright abroad of the US 
government.

Regards,

Maarten


--
Kennisland | www.kl.nl  | t +31205756720 | m +31643053919 | 
@mzeinstra

> On 01 Aug 2016, at 10:20, Maarten Zeinstra  wrote:
> 
> Hi Cem,
> 
> I believe this was already answered John Cowan, I was proven wrong. US does 
> assert copyright for government works in other jurisdictions. Wikipedia 
> provides these sources:
> 
> “The prohibition on copyright protection for United States Government works 
> is not intended to have any effect on protection of these works abroad. Works 
> of the governments of most other countries are copyrighted. There are no 
> valid policy reasons for denying such protection to United States Government 
> works in foreign countries, or for precluding the Government from making 
> licenses for the use of its works abroad.” - House Report No. 94-1476
> 
> and 
> 
> “3.1.7  Does the Government have copyright protection in U.S. Government 
> works in other countries?
> Yes, the copyright exclusion for works of the U.S. Government is not intended 
> to have any impact on protection of these works abroad (S. REP. NO. 473, 94th 
> Cong., 2d Sess. 56 (1976)). Therefore, the U.S. Government may obtain 
> protection in other countries depending on the treatment of government works 
> by the national copyright law of the particular country. Copyright is 
> sometimes asserted by U.S. Government agencies outside the United States.” 
> http://www.cendi.gov/publications/04-8copyright.html#317 
> 
> 
> However I am not sure how this would work with the Berne Convention, 
> especially article 7(8) which states: ‘[..] the term shall be governed by the 
> legislation of the country where protection is claimed; however, unless the 
> legislation of that country otherwise provides, the term shall not exceed the 
> term fixed in the country of origin of the work.’ If the U.S. term of 
> protection is 0 years, than other countries would also apply 0 years.
> 
> @John, @Cem: do you have some case law about this? I would like to verify 
> this with my academic network in the U.S. If not, any license you want to 
> apply on this material is immediately void (which is only a theoretical 
> problem imo).
> 
> Regards,
> 
> Maarten
> 
> --
> Kennisland | www.kl.nl  | t +31205756720 | m +31643053919 
> | @mzeinstra
> 
>> On 29 Jul 2016, at 19:37, Karan, Cem F CIV USARMY RDECOM ARL (US) 
>> > wrote:
>> 
>> I'm sorry for getting back late to this, the lawyer I'm working with was 
>> called away for a bit and couldn't reply.
>> 
>> I asked specifically about this case; in our lawyer's opinion, the US 
>> Government does have copyright in foreign (to the US) countries.  He says 
>> that there is case law where the US has asserted this, but he is checking to 
>> see if he can find case law regarding this to definitively answer the 
>> question.
>> 
>> Thanks,
>> Cem Karan
>> 
>>> -Original Message-
>>> From: License-discuss [mailto:license-discuss-boun...@opensource.org 
>>> ] On Behalf Of Maarten 
>>> Zeinstra
>>> Sent: Sunday, July 24, 2016 7:49 AM
>>> To: license-discuss@opensource.org 
>>> Cc: lro...@rosenlaw.com 
>>> Subject: [Non-DoD Source] Re: [License-discuss] US Army Research Laboratory 
>>> Open Source License proposal
>>> 
>>> All active links contained in this email were disabled. Please verify the 
>>> identity of the sender, and confirm the authenticity of all links
>>> contained within the message prior to copying and pasting the address to a 
>>> Web browser.
>>> 
>>> 
>>> 
>>> 
>>> 
>>> 
>>> Hi,
>>> 
>>> Yes I am suggesting that if the country of origin of the work does not 
>>> assign copyright to the work then no copyright is assigned world-
>>> wide. My reasoning is that there is no entity to assign that copyright to.
>>> 
>>> An example in a different field might support my argument.
>>> 
>>> In the Netherlands we automatically assign (not transfer, which is 
>>> important here) any IP rights of the employee to the employer if works
>>> are created within the duties of the employee. That means that the employer 
>>> is the rights holder. This rights holder is consequently also
>>> recognised as the rights holder in other jurisdictions. Who might, given a 
>>> similar situation in their own jurisdiction, normally assign the
>>> right to the employee.
>>> 
>>> Now if there is no rights holder to begin with (the U.S. waives it rights 
>>> on government produced works as I understand, the Netherlands
>>> government does 

Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

[Maarten Zeinstra]

Hi Cem,

I believe this was already answered John Cowan, I was proven wrong. US does 
assert copyright for government works in other jurisdictions. Wikipedia 
provides these sources:

“The prohibition on copyright protection for United States Government works is 
not intended to have any effect on protection of these works abroad. Works of 
the governments of most other countries are copyrighted. There are no valid 
policy reasons for denying such protection to United States Government works in 
foreign countries, or for precluding the Government from making licenses for 
the use of its works abroad.” - House Report No. 94-1476

and 

“3.1.7  Does the Government have copyright protection in U.S. Government works 
in other countries?
Yes, the copyright exclusion for works of the U.S. Government is not intended 
to have any impact on protection of these works abroad (S. REP. NO. 473, 94th 
Cong., 2d Sess. 56 (1976)). Therefore, the U.S. Government may obtain 
protection in other countries depending on the treatment of government works by 
the national copyright law of the particular country. Copyright is sometimes 
asserted by U.S. Government agencies outside the United States.” 
http://www.cendi.gov/publications/04-8copyright.html#317

However I am not sure how this would work with the Berne Convention, especially 
article 7(8) which states: ‘[..] the term shall be governed by the legislation 
of the country where protection is claimed; however, unless the legislation of 
that country otherwise provides, the term shall not exceed the term fixed in 
the country of origin of the work.’ If the U.S. term of protection is 0 years, 
than other countries would also apply 0 years.

@John, @Cem: do you have some case law about this? I would like to verify this 
with my academic network in the U.S. If not, any license you want to apply on 
this material is immediately void (which is only a theoretical problem imo).

Regards,

Maarten

--
Kennisland | www.kl.nl  | t +31205756720 | m +31643053919 | 
@mzeinstra

> On 29 Jul 2016, at 19:37, Karan, Cem F CIV USARMY RDECOM ARL (US) 
>  wrote:
> 
> I'm sorry for getting back late to this, the lawyer I'm working with was 
> called away for a bit and couldn't reply.
> 
> I asked specifically about this case; in our lawyer's opinion, the US 
> Government does have copyright in foreign (to the US) countries.  He says 
> that there is case law where the US has asserted this, but he is checking to 
> see if he can find case law regarding this to definitively answer the 
> question.
> 
> Thanks,
> Cem Karan
> 
>> -Original Message-
>> From: License-discuss [mailto:license-discuss-boun...@opensource.org 
>> ] On Behalf Of Maarten 
>> Zeinstra
>> Sent: Sunday, July 24, 2016 7:49 AM
>> To: license-discuss@opensource.org 
>> Cc: lro...@rosenlaw.com 
>> Subject: [Non-DoD Source] Re: [License-discuss] US Army Research Laboratory 
>> Open Source License proposal
>> 
>> All active links contained in this email were disabled. Please verify the 
>> identity of the sender, and confirm the authenticity of all links
>> contained within the message prior to copying and pasting the address to a 
>> Web browser.
>> 
>> 
>> 
>> 
>> 
>> 
>> Hi,
>> 
>> Yes I am suggesting that if the country of origin of the work does not 
>> assign copyright to the work then no copyright is assigned world-
>> wide. My reasoning is that there is no entity to assign that copyright to.
>> 
>> An example in a different field might support my argument.
>> 
>> In the Netherlands we automatically assign (not transfer, which is important 
>> here) any IP rights of the employee to the employer if works
>> are created within the duties of the employee. That means that the employer 
>> is the rights holder. This rights holder is consequently also
>> recognised as the rights holder in other jurisdictions. Who might, given a 
>> similar situation in their own jurisdiction, normally assign the
>> right to the employee.
>> 
>> Now if there is no rights holder to begin with (the U.S. waives it rights on 
>> government produced works as I understand, the Netherlands
>> government does the same), then no foreign rights can be assigned as well. 
>> Hence the work must be in the public domain world wide.
>> 
>> I have more experience with Creative Commons-licenses than with Open Source 
>> license, but in CC licenses the license exists for the
>> duration of the right. I assume all Open Source licenses are basically the 
>> same in this regard. In that sense it does not matter which license
>> is applied as the license is immediately void, since there is no underlying 
>> right to license.
>> 
>> Finally, in the past I have advised the dutch government to adopt CC0 to 
>> make the public domain status of their works clear. They have
>> 

Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

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

I'm sorry for getting back late to this, the lawyer I'm working with was called 
away for a bit and couldn't reply.

I asked specifically about this case; in our lawyer's opinion, the US 
Government does have copyright in foreign (to the US) countries.  He says that 
there is case law where the US has asserted this, but he is checking to see if 
he can find case law regarding this to definitively answer the question.

Thanks,
Cem Karan

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Maarten Zeinstra
> Sent: Sunday, July 24, 2016 7:49 AM
> To: license-discuss@opensource.org
> Cc: lro...@rosenlaw.com
> Subject: [Non-DoD Source] Re: [License-discuss] US Army Research Laboratory 
> Open Source License proposal
> 
> All active links contained in this email were disabled. Please verify the 
> identity of the sender, and confirm the authenticity of all links
> contained within the message prior to copying and pasting the address to a 
> Web browser.
> 
> 
> 
> 
> 
> 
> Hi,
> 
> Yes I am suggesting that if the country of origin of the work does not assign 
> copyright to the work then no copyright is assigned world-
> wide. My reasoning is that there is no entity to assign that copyright to.
> 
> An example in a different field might support my argument.
> 
> In the Netherlands we automatically assign (not transfer, which is important 
> here) any IP rights of the employee to the employer if works
> are created within the duties of the employee. That means that the employer 
> is the rights holder. This rights holder is consequently also
> recognised as the rights holder in other jurisdictions. Who might, given a 
> similar situation in their own jurisdiction, normally assign the
> right to the employee.
> 
> Now if there is no rights holder to begin with (the U.S. waives it rights on 
> government produced works as I understand, the Netherlands
> government does the same), then no foreign rights can be assigned as well. 
> Hence the work must be in the public domain world wide.
> 
> I have more experience with Creative Commons-licenses than with Open Source 
> license, but in CC licenses the license exists for the
> duration of the right. I assume all Open Source licenses are basically the 
> same in this regard. In that sense it does not matter which license
> is applied as the license is immediately void, since there is no underlying 
> right to license.
> 
> Finally, in the past I have advised the dutch government to adopt CC0 to make 
> the public domain status of their works clear. They have
> adopted this since ~2011 on their main site: 
> Caution-https://www.government.nl/copyright < Caution-
> https://www.government.nl/copyright >  (english version). I advise the US 
> army does something similar as well.
> 
> Regards,
> 
> Maarten Zeinstra
> 
> --
> Kennisland | Caution-www.kl.nl < Caution-http://www.kl.nl >  | t +31205756720 
> | m +31643053919 | @mzeinstra
> 
> 
>   On 24 Jul 2016, at 08:26, Philippe Ombredanne  Caution-mailto:pombreda...@nexb.com > > wrote:
> 
>   On Fri, Jul 22, 2016 at 11:23 PM, Lawrence Rosen  Caution-mailto:lro...@rosenlaw.com > > wrote:
> 
> 
> 
>   It is true that this public domain result doesn't apply outside 
> the U.S. But
>   if you apply a valid open source license to it – such as Apache 
> 2.0 – that
>   should be good enough for everyone who doesn't live in the U.S. 
> and
>   irrelevant for us here.
> 
> 
> 
>   Larry, are you suggesting that Cem considers using  some statement more
>   or less like this, rather than a new license?
>  This U.S. Federal Government work is not copyrighted and dedicated
>  to the public domain in the USA. Alternatively, the Apache-2.0
>   license applies
>  outside of the USA ?
> 
>   On Sat, Jul 23, 2016 at 9:51 AM, Maarten Zeinstra  Caution-mailto:m...@kl.nl > > wrote:
> 
> 
> 
>   Is that the correct interpretation of the Berne convention? The 
> convention
>   assigns copyright to foreigners of a signatory state with at 
> least as strong
>   protection as own nationals. Since US government does not 
> attract copyright
>   I am unsure if they can attract copyright in other 
> jurisdictions.
> 
> 
> 
>   Maarten, are you suggesting then that the lack of copyright for a U.S. 
> Federal
>   Government work would just then apply elsewhere too and that using an
>   alternative Apache license would not even be needed?
> 
>   --
>   Cordially
>   Philippe Ombredanne
> 
>   +1 650 799 0949 | pombreda...@nexb.com < 
> Caution-mailto:pombreda...@nexb.com >
>   DejaCode : What's in your code?! at Caution-http://www.dejacode.com < 
> Caution-http://www.dejacode.com >
>   nexB Inc. at 

Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

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

Thank you!  I've subscribed to legal-disc...@apache.org and will be bringing 
up our license there shortly.  And thank you for all your points, assuming you 
don't mind, I'll bring them up at legal-disc...@apache.org as well.

Thanks,
Cem Karan

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Richard Eckart de Castilho
> Sent: Tuesday, July 26, 2016 1:56 AM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: US Army Research 
> Laboratory Open Source License proposal
>
> All active links contained in this email were disabled.  Please verify the 
> identity of the sender, and confirm the authenticity of all links
> contained within the message prior to copying and pasting the address to a 
> Web browser.
>
>
>
>
> 
>
> Hi Cem,
>
> > On 25.07.2016, at 18:41, Karan, Cem F CIV USARMY RDECOM ARL (US) 
> > <cem.f.karan@mail.mil> wrote:
> >
> > OK at this point I want to start another discussion about the license
> > (attached once again, with the minor correction of stripping out the
> > word 'Apache', which I'd left in earlier).  Is the license compatible
> > with Apache
> > 2.0 and the licenses that Apache 2.0 is compatible with?  If not, why not?
>
> This list is IMHO not the right place to ask whether your license would be 
> compatible with the Apache License 2.0. You should post that
> question on the legal-discuss list of Apache (legal-disc...@apache.org).
>
> Mind there have been requests to Apache from USG-affiliated people 
> requesting the Apache license to be changed - these have been
> discussed but rejected. Your approach to create a new license seems kind of 
> novel in that respect.
>
> When it comes to compatibility, the question is what you actually mean by 
> that.
> I see multiple questions:
>
> - Is there any conflict between the terms in your license and the Apache 
> license?
>
> - If there are conflicts, are they one-way? I.e. can at least a work under 
> your
>   license include code under the Apache license or vice versa?
>
> Finally there is a policy question. If your desire is that Apache (or 
> parties following the Apache-view of third-party license management)
> should be able to make used of code under your license, then you should 
> check out this page:
>
>   Caution-http://www.apache.org/legal/resolved.html#category-a
>
> If you can get Apache to add your license to that list under "considered to 
> be similar", that should be a strong blessing.
>
> If you bring up the topic with Apache, I would recommend you state your 
> expectations/wishes regarding license compatibility and policy
> separately trying to avoid the two aspects to be mingled up in the 
> discussion.
>
> Best,
>
> -- Richard
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Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

[Richard Eckart de Castilho]

Hi Cem,

> On 25.07.2016, at 18:41, Karan, Cem F CIV USARMY RDECOM ARL (US) 
>  wrote:
> 
> OK at this point I want to start another discussion about the license 
> (attached once again, with the minor correction of stripping out the word 
> 'Apache', which I'd left in earlier).  Is the license compatible with Apache 
> 2.0 and the licenses that Apache 2.0 is compatible with?  If not, why not?

This list is IMHO not the right place to ask whether your license would be
compatible with the Apache License 2.0. You should post that question on
the legal-discuss list of Apache (legal-disc...@apache.org). 

Mind there have been requests to Apache from USG-affiliated people requesting
the Apache license to be changed - these have been discussed but rejected. Your
approach to create a new license seems kind of novel in that respect.

When it comes to compatibility, the question is what you actually mean by that.
I see multiple questions:

- Is there any conflict between the terms in your license and the Apache 
license?

- If there are conflicts, are they one-way? I.e. can at least a work under your
  license include code under the Apache license or vice versa?

Finally there is a policy question. If your desire is that Apache (or parties
following the Apache-view of third-party license management) should be able to
make used of code under your license, then you should check out this page:

  http://www.apache.org/legal/resolved.html#category-a 

If you can get Apache to add your license to that list under "considered to be 
similar", that should be a strong blessing.

If you bring up the topic with Apache, I would recommend you state your
expectations/wishes regarding license compatibility and policy separately
trying to avoid the two aspects to be mingled up in the discussion.

Best,

-- Richard
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Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

[Richard Eckart de Castilho]

Hi Cem,

> On 25.07.2016, at 18:41, Karan, Cem F CIV USARMY RDECOM ARL (US) 
>  wrote:
> 
> OK at this point I want to start another discussion about the license 
> (attached once again, with the minor correction of stripping out the word 
> 'Apache', which I'd left in earlier).  Is the license compatible with Apache 
> 2.0 and the licenses that Apache 2.0 is compatible with?  If not, why not?

This list is IMHO not the right place to ask whether your license would be
compatible with the Apache License 2.0. You should post that question on
the legal-discuss list of Apache (legal-disc...@apache.org). 

Mind there have been requests to Apache from USG-affiliated people requesting
the Apache license to be changed - these have been discussed but rejected. Your
approach to create a new license seems kind of novel in that respect.

When it comes to compatibility, the question is what you actually mean by that.
I see multiple questions:

- Is there any conflict between the terms in your license and the Apache 
license?

- If there are conflicts, are they one-way? I.e. can at least a work under your
  license include code under the Apache license or vice versa?

Finally there is a policy question. If your desire is that Apache (or parties
following the Apache-view of third-party license management) should be able to
make used of code under your license, then you should check out this page:

  http://www.apache.org/legal/resolved.html#category-a 

If you can get Apache to add your license to that list under "considered to be 
similar", that should be a strong blessing.

If you bring up the topic with Apache, I would recommend you state your
expectations/wishes regarding license compatibility and policy separately
trying to avoid the two aspects to be mingled up in the discussion.

Best,

-- Richard
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Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

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

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Gervase Markham
> Sent: Monday, July 25, 2016 12:49 PM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: US Army Research 
> Laboratory Open Source License proposal
>
> On 25/07/16 17:33, Karan, Cem F CIV USARMY RDECOM ARL (US) wrote:
> > OK, I see where you're coming from, I'm just not comfortable with it.
> > I'm much more comfortable with a single license that covers
> > everything.  I also know that our lawyers would be more comfortable
> > with a single document that covered everything.  But I do see your point!
>
> Why can't the Apache license be that document?
>
> USG isn't going to try and enforce the copyright-related provisions in the 
> Apache License against anyone - because it has no standing. But
> the disclaimer would still stand, under the principle that a legal document 
> is reformed just to the extent to make it valid.
>
> What would happen that was bad, if you just released the software and said 
> "This is under the Apache license"? What's the scenario you
> are worried about?

The concern is that BECAUSE the USG doesn't have copyright protection, others 
could argue that the entire license is invalid as it is all based on 
copyright, and there isn't any concept of severability in the original Apache 
2.0 license.  That opens up liability, etc. as problems.  By making a license 
that relies on copyright where available, and contract law where it isn't, 
we're making something that (we hope) will stand up in court when we have to 
defend it.

> Having made that point, I think you need to understand the significant deal 
> that it is to try and get a new open source licence approved. If
> all that's up against is "Our lawyers would prefer one document rather than 
> two" (and hey, you can put the statements in the same file)
> then it could be that this is not seen as sufficient justification for 
> approving a new licence as open source.

I understand how much effort it can be; I've heard about some of the problems 
that NOSA 2.0 has been facing.  Believe me, if I thought that there was a 
better way that would be acceptable to the USG, I would prefer to do it! 
However, as I understand it, there isn't another way.  That said, every time 
you come up with a point that sounds good, I've been running down to the ARL 
Legal office to see what they think of it; I'll do the same with your comments 
this time, but the lawyer I'm working with here at ARL is currently not in his 
office.  I'm going to try to talk him into joining the mailing list, as he can 
explain what the major problems are better than I can.  Since I'm not a 
lawyer, I may be getting some of the points wrong.

Thanks,
Cem Karan



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Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

[Gervase Markham]

On 25/07/16 17:33, Karan, Cem F CIV USARMY RDECOM ARL (US) wrote:
> OK, I see where you're coming from, I'm just not comfortable with it.  I'm 
> much more comfortable with a single license that covers everything.  I also 
> know that our lawyers would be more comfortable with a single document that 
> covered everything.  But I do see your point!

Why can't the Apache license be that document?

USG isn't going to try and enforce the copyright-related provisions in
the Apache License against anyone - because it has no standing. But the
disclaimer would still stand, under the principle that a legal document
is reformed just to the extent to make it valid.

What would happen that was bad, if you just released the software and
said "This is under the Apache license"? What's the scenario you are
worried about?

Having made that point, I think you need to understand the significant
deal that it is to try and get a new open source licence approved. If
all that's up against is "Our lawyers would prefer one document rather
than two" (and hey, you can put the statements in the same file) then it
could be that this is not seen as sufficient justification for approving
a new licence as open source.

Gerv
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Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

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

OK at this point I want to start another discussion about the license 
(attached once again, with the minor correction of stripping out the word 
'Apache', which I'd left in earlier).  Is the license compatible with Apache 
2.0 and the licenses that Apache 2.0 is compatible with?  If not, why not?

We really want our code to be maximally useful, which requires that others be 
able to use it freely.  If the language in the license precludes that, then it 
should change.

Thanks,
Cem Karan

 U.S. Army Research Laboratory Open Source License (ARL OSL)
   Version 0.2.1, July 2016
http://no/URL/as/yet

   TERMS AND CONDITIONS FOR USE, REPRODUCTION, AND DISTRIBUTION

   1. Definitions.

  "License" shall mean the terms and conditions for use, reproduction,
  and distribution as defined by Sections 1 through 9 of this document.

  "Licensor" shall mean the project originator or entity authorized by
  the project originator that is granting the License.

  "Legal Entity" shall mean the union of the acting entity and all
  other entities that control, are controlled by, or are under common
  control with that entity. For the purposes of this definition,
  "control" means (i) the power, direct or indirect, to cause the
  direction or management of such entity, whether by contract or
  otherwise, or (ii) ownership of fifty percent (50%) or more of the
  outstanding shares, or (iii) beneficial ownership of such entity.

  "You" (or "Your") shall mean an individual or Legal Entity
  exercising permissions granted by this License.

  "Source" form shall mean the preferred form for making modifications,
  including but not limited to software source code, documentation
  source, and configuration files.

  "Object" form shall mean any form resulting from mechanical
  transformation or translation of a Source form, including but
  not limited to compiled object code, generated documentation,
  and conversions to other media types.

  "Work" shall mean the work of authorship, whether in Source or
  Object form, made available under the License, as indicated by a
  notice that is included in or attached to the work
  (an example is provided in the Appendix below).

  "Derivative Works" shall mean any work, whether in Source or Object
  form, that is based on (or derived from) the Work and for which the
  editorial revisions, annotations, elaborations, or other modifications
  represent, as a whole, an original work of authorship. For the purposes
  of this License, Derivative Works shall not include works that remain
  separable from, or merely link (or bind by name) to the interfaces of,
  the Work and Derivative Works thereof.

  "Contribution" shall mean any work of authorship, including
  the original version of the Work and any modifications or additions
  to that Work or Derivative Works thereof, that is intentionally
  submitted to Licensor for inclusion in the Work by the author
  or by an individual or Legal Entity authorized to submit on behalf of
  the author. For the purposes of this definition, "submitted"
  means any form of electronic, verbal, or written communication sent
  to the Licensor or its representatives, including but not limited to
  communication on electronic mailing lists, source code control systems,
  and issue tracking systems that are managed by, or on behalf of, the
  Licensor for the purpose of discussing and improving the Work, but
  excluding communication that is conspicuously marked or otherwise
  designated in writing by the author as "Not a Contribution."

  "Contributor" shall mean Licensor and any individual or Legal Entity
  on behalf of whom a Contribution has been received by Licensor and
  subsequently incorporated within the Work.

   2. Grant of Copyright License. Subject to the terms and conditions of
  this License, each Contributor hereby grants to You a perpetual,
  worldwide, non-exclusive, no-charge, royalty-free, irrevocable
  copyright license to reproduce, prepare Derivative Works of,
  publicly display, publicly perform, sublicense, and distribute the
  Work and such Derivative Works in Source or Object form.

   3. Grant of Patent License. Subject to the terms and conditions of
  this License, each Contributor hereby grants to You a perpetual,
  worldwide, non-exclusive, no-charge, royalty-free, irrevocable
  (except as stated in this section) patent license to make, have made,
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Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

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

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Gervase Markham
> Sent: Monday, July 25, 2016 11:20 AM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: US Army Research 
> Laboratory Open Source License proposal
>
> On 25/07/16 16:12, Karan, Cem F CIV USARMY RDECOM ARL (US) wrote:
> > Protections from liability from anyone that uses our code, for one
> > thing.  I am not a lawyer, but as I understand it putting stuff in the
> > public domain does not release you from liability, so without some
> > kind of notice the USG could be sued because bugs cause a crash at
> > some point, causing harm, etc., etc., etc.  The 'no warranty' clause
> > is something we have to have.  In fact, if you read the CC0 license
> > text
> > (Caution-https://creativecommons.org/publicdomain/zero/1.0/legalcode),
> > even it has a warranty disclaimer, and it is trying to waive all copyright 
> > to the maximum extent possible.
>
> But a "no warranty" clause is a disclaimer, not a license condition.
> AFAICS (and IANAL) nothing prevents a USG institution sticking some source 
> code on a web page, along with a big fat warranty disclaimer,
> which would have legal force. You don't have to own the copyright in code to 
> disclaim warranty over it when you give it someone. If I give
> you some open source code I didn't write, I can still disclaim all warranty 
> in it as I give it to you, and that disclaimation (a word?) should
> be valid. So even if USG has no copyright on this code in the USA, you can 
> still put a warranty disclaimer up.
>
> Everyone else has copyright, and so will be contributing under the Apache 
> license, and so the warranty disclaimer in that will apply to
> their contributions. So everyone's covered.

OK, I see where you're coming from, I'm just not comfortable with it.  I'm 
much more comfortable with a single license that covers everything.  I also 
know that our lawyers would be more comfortable with a single document that 
covered everything.  But I do see your point!

Thanks,
Cem Karan



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Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

[John Cowan]

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

> I honestly don't know.  The ARL lawyer I'm working with thinks that
> the USG may have foreign copyright, but he says that until it has been
> litigated and settled in court (and I don't know which country's courts
> that will be in), there's no way to know for certain.

Indeed, since foreign copyright is a matter of foreign law, the question
might be decided different ways in different countries.  At any rate,
Congress did not intend government copyright in foreign nations to
be affected.  See
https://en.wikisource.org/wiki/Copyright_Law_Revision_(House_Report_No._94-1476)
which says in the discussion of Section 105:

The prohibition on copyright protection for United States
Government works is not intended to have any effect on protection
of these works abroad. Works of the governments of most other
countries are copyrighted. There are no valid policy reasons
for denying such protection to United States Government works in
foreign countries, or for precluding the Government from making
licenses for the use of its works abroad.

The corresponding Senate report at
https://en.wikisource.org/wiki/Copyright_Law_Revision_(Senate_Report_No._94-473)
uses exactly the same words.

-- 
John Cowan  http://www.ccil.org/~cowanco...@ccil.org
Ambassador Trentino: I've said enough. I'm a man of few words.
Rufus T. Firefly: I'm a man of one word: scram!--Duck Soup
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Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

[Gervase Markham]

On 25/07/16 16:12, Karan, Cem F CIV USARMY RDECOM ARL (US) wrote:
> Protections from liability from anyone that uses our code, for one thing.  I 
> am not a lawyer, but as I understand it putting stuff in the public domain 
> does not release you from liability, so without some kind of notice the USG 
> could be sued because bugs cause a crash at some point, causing harm, etc., 
> etc., etc.  The 'no warranty' clause is something we have to have.  In fact, 
> if you read the CC0 license text 
> (https://creativecommons.org/publicdomain/zero/1.0/legalcode), even it has a 
> warranty disclaimer, and it is trying to waive all copyright to the maximum 
> extent possible.

But a "no warranty" clause is a disclaimer, not a license condition.
AFAICS (and IANAL) nothing prevents a USG institution sticking some
source code on a web page, along with a big fat warranty disclaimer,
which would have legal force. You don't have to own the copyright in
code to disclaim warranty over it when you give it someone. If I give
you some open source code I didn't write, I can still disclaim all
warranty in it as I give it to you, and that disclaimation (a word?)
should be valid. So even if USG has no copyright on this code in the
USA, you can still put a warranty disclaimer up.

Everyone else has copyright, and so will be contributing under the
Apache license, and so the warranty disclaimer in that will apply to
their contributions. So everyone's covered.

Gerv
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Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

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

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Gervase Markham
> Sent: Monday, July 25, 2016 10:36 AM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: US Army Research 
> Laboratory Open Source License proposal
>
> On 25/07/16 15:12, Karan, Cem F CIV USARMY RDECOM ARL (US) wrote:
> > Even though it will be headache to do so, we still need to.  USG works
> > that don't have copyright attached must still have a license/contract
> > that offers the same protections as one would expect from the Apache 2.0 
> > license.
>
> Protections from whom? It can't be from the USG, because it has no rights in 
> the code to assert in court. And it can't be from other
> contributors, because if you get them all to contribute under the Apache
> 2.0 license, then all users are as protected as in a normal Apache project.
>
> It seems to me like the people who wrote the law that the USG does not have 
> a copyright intended that the USG therefore not assert
> copyright-like control over work created by the USG. Trying to re-create 
> that control via contract seems to me to be working against the
> spirit of the law.

Protections from liability from anyone that uses our code, for one thing.  I 
am not a lawyer, but as I understand it putting stuff in the public domain 
does not release you from liability, so without some kind of notice the USG 
could be sued because bugs cause a crash at some point, causing harm, etc., 
etc., etc.  The 'no warranty' clause is something we have to have.  In fact, 
if you read the CC0 license text 
(https://creativecommons.org/publicdomain/zero/1.0/legalcode), even it has a 
warranty disclaimer, and it is trying to waive all copyright to the maximum 
extent possible.

Remember, the Apache license is using copyright to effect other protections. 
We want those same protections for all parties involved in the code, both the 
USG, and any person or entity that has copyright.  If we didn't care about any 
of that, we could just toss it out as public domain code, but that (in my 
personal opinion) is highly irresponsible.

Does this make things clearer?

Thanks,
Cem Karan


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Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

[Gervase Markham]

On 25/07/16 15:12, Karan, Cem F CIV USARMY RDECOM ARL (US) wrote:
> Even though it will be headache to do so, we still need to.  USG works that 
> don't have copyright attached must still have a license/contract that offers 
> the same protections as one would expect from the Apache 2.0 license.

Protections from whom? It can't be from the USG, because it has no
rights in the code to assert in court. And it can't be from other
contributors, because if you get them all to contribute under the Apache
2.0 license, then all users are as protected as in a normal Apache project.

It seems to me like the people who wrote the law that the USG does not
have a copyright intended that the USG therefore not assert
copyright-like control over work created by the USG. Trying to re-create
that control via contract seems to me to be working against the spirit
of the law.

Gerv
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Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

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

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Gervase Markham
> Sent: Monday, July 25, 2016 9:24 AM
> To: license-discuss@opensource.org
> Subject: Re: [License-discuss] [Non-DoD Source] Re: US Army Research 
> Laboratory Open Source License proposal
>
> On 25/07/16 13:46, Karan, Cem F CIV USARMY RDECOM ARL (US) wrote:
> > 1) Put out a notice to the world that the code covered under the
> > license is 'AS-IS'; the whole 'no warranty' part in the Apache 2.0
> > license.  This needs to cover not only the USG, but also any
> > contributors.  The USG is (in my
> > opinion) well-funded and capable of defending itself.  Persons or
> > entities that are charitable enough to contribute to our projects may
> > not be; I personally would consider it to be poor form to leave them
> > unprotected after they've been kind enough to help with our projects.
> > Notifying anyone that downloads the code that there is no warranty helps 
> > protect against liability.
>
> But "Persons or entities that are charitable enough to contribute to our 
> projects" also hold copyright. Therefore, you don't have to solve
> any "there isn't a copyright" problem for them - you just use the Apache 
> License.
>
> It seems to me that the best way to achieve what you want is to stick an 
> Apache License on it and to say "some of this work may have
> been created by USG employees, and those parts are not under copyright in 
> the USA".
> If someone wants to dig through and extract those parts only and turn them 
> into something else and put it under their own license, they
> can - but who would.
>
> Saying "all the copyrightable bits are Apache" solves your problem from a 
> licensing perspective.
>
> If you want to solve the problem that the USG has no copyright by turning a 
> copyright license into a contract (e.g. to challenge
> misrepresentation), then that's a massive change, which will be much more of 
> a headache than any other scheme you could come up with.

Even though it will be headache to do so, we still need to.  USG works that 
don't have copyright attached must still have a license/contract that offers 
the same protections as one would expect from the Apache 2.0 license.

Thanks,
Cem Karan


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Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

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

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Philippe Ombredanne
> Sent: Sunday, July 24, 2016 2:27 AM
> To: lro...@rosenlaw.com; license-discuss@opensource.org
> Subject: [Non-DoD Source] Re: [License-discuss] US Army Research Laboratory 
> Open Source License proposal
> 
> On Fri, Jul 22, 2016 at 11:23 PM, Lawrence Rosen  wrote:
> >
> > It is true that this public domain result doesn't apply outside the
> > U.S. But if you apply a valid open source license to it – such as
> > Apache 2.0 – that should be good enough for everyone who doesn't live
> > in the U.S. and irrelevant for us here.
> 
> Larry, are you suggesting that Cem considers using  some statement more or 
> less like this, rather than a new license?
> This U.S. Federal Government work is not copyrighted and dedicated
> to the public domain in the USA. Alternatively, the Apache-2.0 license 
> applies
> outside of the USA ?

This won't work for us.  We want the terms in the Apache 2.0 license that deal 
with liability, prevents misrepresentation via misuse of trademarks, and 
prevents IP trolling.  The original works by the USG will go through an 
internal process that waives the IP rights irrevocably, but that doesn't cover 
the contributions by others.  That is why the Apache 2.0 license is so 
appealing; it protects not only the USG, but also all contributors and users, 
not only from the USG, but from each other.  We need an equivalent that will 
also work in the USA.

Thanks,
Cem Karan



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Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

[Gervase Markham]

On 25/07/16 13:46, Karan, Cem F CIV USARMY RDECOM ARL (US) wrote:
> 1) Put out a notice to the world that the code covered under the license is 
> 'AS-IS'; the whole 'no warranty' part in the Apache 2.0 license.  This needs 
> to cover not only the USG, but also any contributors.  The USG is (in my 
> opinion) well-funded and capable of defending itself.  Persons or entities 
> that are charitable enough to contribute to our projects may not be; I 
> personally would consider it to be poor form to leave them unprotected after 
> they've been kind enough to help with our projects.  Notifying anyone that 
> downloads the code that there is no warranty helps protect against liability.

But "Persons or entities that are charitable enough to contribute to our
projects" also hold copyright. Therefore, you don't have to solve any
"there isn't a copyright" problem for them - you just use the Apache
License.

It seems to me that the best way to achieve what you want is to stick an
Apache License on it and to say "some of this work may have been created
by USG employees, and those parts are not under copyright in the USA".
If someone wants to dig through and extract those parts only and turn
them into something else and put it under their own license, they can -
but who would.

Saying "all the copyrightable bits are Apache" solves your problem from
a licensing perspective.

If you want to solve the problem that the USG has no copyright by
turning a copyright license into a contract (e.g. to challenge
misrepresentation), then that's a massive change, which will be much
more of a headache than any other scheme you could come up with.

Gerv
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Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

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

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Maarten Zeinstra
> Sent: Saturday, July 23, 2016 3:51 AM
> To: license-discuss@opensource.org
> Subject: [Non-DoD Source] Re: [License-discuss] US Army Research Laboratory 
> Open Source License proposal
>
> Is that the correct interpretation of the Berne convention? The convention 
> assigns copyright to foreigners of a signatory state with at least
> as strong protection as own nationals. Since US government does not attract 
> copyright I am unsure if they can attract copyright in other
> jurisdictions.
>
> I am of the belief that the US government does not get assigned copyright in 
> other jurisdiction as it is not a right holder in the country of
> origin.
>
> Or am I misunderstanding the Berne Convention?

I honestly don't know.  The ARL lawyer I'm working with thinks that the USG 
may have foreign copyright, but he says that until it has been litigated and 
settled in court (and I don't know which country's courts that will be in), 
there's no way to know for certain.  We're assuming that the USG will have 
copyright in countries other than the USA because it requires us to think of 
the most difficult scenario from the point of view of creating a license; and 
as my lawyer friend keeps explaining to me, "you don't need an air-tight 
contract until you get sued, and then if you don't have one, it's too late". 
Basically, we're trying to prevent headaches when we don't even know if it's 
even possible for them to come up.  I hope that explains why we're taking the 
position we are.

Thanks,
Cem Karan


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Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

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

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Lawrence Rosen
> Sent: Friday, July 22, 2016 5:23 PM
> To: license-discuss@opensource.org
> Cc: Lawrence Rosen 
> Subject: [Non-DoD Source] Re: [License-discuss] US Army Research Laboratory 
> Open Source License proposal
> 
> Cem Karan wrote:
> 
> > Most of our researchers work for the US Federal Government and under US 
> > copyright law any works they produce during the course of
> their duties do not have copyright attached, so we have to rely on contract 
> law as a protection mechanism within the USA.
> 
> I don't understand your worry. Not only can't you assert copyright in the 
> U.S., you can't prevent anyone in the U.S. from copying or
> modifying those works even without any license needed from you. You can't 
> even rely on contract law in the U.S. to protect against those
> uses here. I have personally, on occasion, considered filing a Freedom of 
> Information Act request for useful government code to see if that
> works to pry free software from government hands. I never did that. The U.S. 
> government has almost always proven to be very generous
> without demands.

We're fine with distributions and modifications; we wouldn't be putting it out 
as Open Source if we weren't.  However, as I said in my earlier email, we still 
need to deal with liability, misrepresentation, and various forms of IP 
trolling.  

As for FOIA requests, that is one way of getting the code, but it doesn't make 
for a very good Open Source experience for anyone.  We want an internal process 
that lets our researchers participate in Open Source properly, and that 
requires a license that works for the USG.

> 
> It is true that this public domain result doesn't apply outside the U.S. But 
> if you apply a valid open source license to it – such as Apache 2.0
> – that should be good enough for everyone who doesn't live in the U.S. and 
> irrelevant for us here.

We'd rather avoid the issues that come with dual licensing; it is its own 
maintenance headache.  A single license is easy to apply, and easy to 
understand for everyone.  In addition, if we ever do have to deal with 
litigation, everyone knows which license applies, rather than spend time 
arguing over the license that should be used.
 
> /Larry
> 
> 
> 
> -Original Message-
> From: Karan, Cem F CIV USARMY RDECOM ARL (US) 
> [Caution-mailto:cem.f.karan@mail.mil]
> Sent: Friday, July 22, 2016 2:01 PM
> To: license-discuss@opensource.org
> Subject: [License-discuss] US Army Research Laboratory Open Source License 
> proposal
> 
> 
> 
> Hi, my name is Cem Karan.  I work for the US Army Research Laboratory (ARL) 
> in Adelphi, MD.  I'm in charge of defining the Open Source
> policy for ARL.  As a part of this, we need a license that meets our legal 
> and regulatory needs, but is ideally fully interchangeable with
> everything licensed under the Apache 2 license as defined at 
> Caution-http://www.apache.org/licenses/LICENSE-2.0.txt < Caution-
> http://www.apache.org/licenses/LICENSE-2.0.txt > . We also want our license 
> to be fully accepted by OSI as a valid Open Source license.
> 
> 
> 
> Unfortunately, we cannot directly use the Apache 2 license for all of our 
> code.  Most of our researchers work for the US Federal
> Government and under US copyright law any works they produce during the 
> course of their duties do not have copyright attached, so we
> have to rely on contract law as a protection mechanism within the USA.  We 
> considered using NOSA 1.3 (Caution-
> https://opensource.org/licenses/NASA-1.3 < 
> Caution-https://opensource.org/licenses/NASA-1.3 > ), but apparently that it 
> isn't
> interoperable with other licenses.  As I understand it, some work on the NOSA
> 
> 2.0 license was done to improve interoperability, but that work is currently 
> stalled.
> 
> 
> 
> For that reason, we've tried to modify the Apache 2.0 license to fit our 
> needs.  The license in full is below and can be diffed with license
> text found at Caution-http://www.apache.org/licenses/LICENSE-2.0.txt < 
> Caution-http://www.apache.org/licenses/LICENSE-2.0.txt >  with
> relative ease; the text has also been attached to this email in case my mail 
> client scrambles the formatting.  The summary of changes are
> as follows:
> 
> 
> 
> 1) Changed the name and version number.
> 
> 
> 
> 2) Changed the definition of 'Licensor' to use 'project originator' instead 
> of 'copyright owner'.
> 
> 
> 
> 3) Changed the definition of 'Work' to not use the word 'copyright'.
> 
> 
> 
> 4) Changed the definition of 'Contributor' to use 'author' instead of 
> 'copyright owner'.
> 
> 
> 
> 5) Removed the word 'copyright' from the Appendix's instructions
> 
> 
> 
> 6) In the notice, removed the word 'Copyright'
> 
> 
> 
> 7) In the notice, changed 'copyright owner' to Licensor.
> 
> 
> 
> 8) Scrambled the URL as we don't have one yet.
> 
> 

Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

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

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Philippe Ombredanne
> Sent: Friday, July 22, 2016 5:12 PM
> To: license-discuss@opensource.org
> Subject: [Non-DoD Source] Re: [License-discuss] US Army Research Laboratory 
> Open Source License proposal
> On Fri, Jul 22, 2016 at 11:01 PM, Karan, Cem F CIV USARMY RDECOM ARL
> (US)  wrote:
>
> > Hi, my name is Cem Karan.  I work for the US Army Research Laboratory
> > (ARL) in Adelphi, MD.  I'm in charge of defining the Open Source
> > policy for ARL.  As a part of this, we need a license that meets our
> > legal and regulatory needs, but is ideally fully interchangeable with
> > everything licensed under the Apache 2 license as defined at
> > Caution-http://www.apache.org/licenses/LICENSE-2.0.txt. We also want our 
> > license to be fully accepted by OSI as a valid Open Source
> license.
> >
> > Unfortunately, we cannot directly use the Apache 2 license for all of
> > our code.  Most of our researchers work for the US Federal Government
> > and under US copyright law any works they produce during the course of
> > their duties do not have copyright attached, so we have to rely on
> > contract law as a protection mechanism within the USA.
>
> What about this simpler approach: you could release your software under a 
> choice of two licenses:
> - a public domain dedication (such as CC-0 or your own dedication) OR
> - the Apache-2.0
>
> Could this alleviate the need to create a new license and still address your 
> needs?

We did consider this, but the problem is still liability, trademark, and IP 
protection, all of which the Apache 2.0 license provides.  This has to extend 
not only to (and from) us, but between contributors.

Thanks,
Cem Karan


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Re: [License-discuss] [Non-DoD Source] Re: US Army Research Laboratory Open Source License proposal

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

> -Original Message-
> From: License-discuss [mailto:license-discuss-boun...@opensource.org] On 
> Behalf Of Gervase Markham
> Sent: Saturday, July 23, 2016 5:09 AM
> To: license-discuss@opensource.org
> Subject: [Non-DoD Source] Re: [License-discuss] US Army Research Laboratory 
> Open Source License proposal

> On 22/07/16 22:01, Karan, Cem F CIV USARMY RDECOM ARL (US) wrote:
> > Unfortunately, we cannot directly use the Apache 2 license for all of
> > our code.  Most of our researchers work for the US Federal Government
> > and under US copyright law any works they produce during the course of
> > their duties do not have copyright attached, so we have to rely on
> > contract law as a protection mechanism within the USA.
>
> Is there not a large problem here, as you have turned what is currently a 
> license into a contract, and yet it is still titled "license"?
>
> Does the OSI approve contracts?
>
> And am I about to get various opinionated lawyers telling me that the 
> license/contract distinction is bogus? :-)

I'm not a lawyer, I have no idea, and I'm NOT going to go there! :)

> Also, another question for Cem: what do you mean by "a protection 
> mechanism"? If you are trying to release something under liberal
> open source terms like Apache, and it turns out that the USG doesn't hold 
> copyright in the thing anyway, isn't that "job done"? What
> needs "protecting"? Things like misrepresentation are surely already illegal 
> without you needing to say so in an agreed document.
>
> Gerv

There are several things we're trying to do.

1) Put out a notice to the world that the code covered under the license is 
'AS-IS'; the whole 'no warranty' part in the Apache 2.0 license.  This needs 
to cover not only the USG, but also any contributors.  The USG is (in my 
opinion) well-funded and capable of defending itself.  Persons or entities 
that are charitable enough to contribute to our projects may not be; I 
personally would consider it to be poor form to leave them unprotected after 
they've been kind enough to help with our projects.  Notifying anyone that 
downloads the code that there is no warranty helps protect against liability.

2) Prevent misrepresentation.  Since USG works don't have copyright 
protection, we're somewhat limited in how we can stop others from distributing 
derivative works that are claimed to be the originals, especially if those 
derivatives turn out to be malicious in some manner.  Trademark law is one way 
we can stop such activity, and is one of the few proactive methods we can use, 
where we don't have to prove a crime has occurred, but merely have to show 
that our trademarks are being misused.

3) Preventing trolling.  A personal concern I have is if someone maliciously 
contributes material with the intent of suing anyone that downloads it for 
patent or copyright infringement.  Once again, the USG is (in my opinion) 
well-funded and quite capable of defending itself.  However, not everyone that 
downloads projects we've sponsored or distributed are as capable.  Preventing 
patent trolls/copyright trolls/other types of IP trolls from using our 
projects as launching points for an attack protects not only the USG's 
reputation, but also protects innocent users of our projects.  In short, in my 
opinion, it is the right thing to do.

I hope that answers your questions.

Thanks,
Cem Karan




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