Subject: Re: License Committee report - regarding NASA Open Source Agreement Version 1.1
From: "Rod Dixon, J.D., LL.M." <rdixon@cyberspaces.org>
Date: Wed, 18 Feb 2004 11:00:16 -0500

I think the NASA Open Source Agreement is worthy of OSI's approval - - with
revision, but it also raises issues worthy of discussion and, perhaps,
adjustment to the OSD since the internationalization of intellectual
property law will likely raise similar open source licensing issues for
other governments.

Regarding the issue concerning whether NASA may license software it cannot
copyright in the U.S., the answer is yes, notwithstanding that significant
harm to the conception of public domain for digital works is likely to
follow.

More generally, there may be good reason to add an article to the OSD
regarding government open source licensing. Since it might be prudent to
encourage open source licensing by governments for a number of reasons, OSI
may want to consider under what conditions that this may be done. For
instance, government bodies could be permitted/required to add a clause to
the license safeguarding public domain rights where applicable. Further, it
may be worth noting that government agencies like NASA could be encouraged
to seek out open source developers when developing software rather than
outsource development strictly to non-open source developers, which means
the software is neither public domain (a government contractor may assert
copyright), nor
open source.

With regard to the NASA license, I have three points. [1] The license
contains an ambitious definition of "display" under section 1, which,
effectively, imposes a restriction on the use of the software that I doubt
is consistent with the spirit of a number of articles of the OSD. This
definition may need revision to be more consistent with traditional
Copyright law conceptions of display of a computer program. The user
registration requirement/request line at the beginning of the license seems
unclear as to purpose and, therefore, it is difficult to determine whether
it is in compliance with article 7 of the OSD. Why is the government
collecting user names, and is this part of the license intended to reach
those licensees/sublicensees receiving the work as part of a redistribution?
I do not view section 3.F of the license as answering my question since it
is not clear why tracking registrations is needed either.

[2] Regarding section 3.J, in all fairness, open source licenses used to
distribute online software initially created by the U.S. government ought to
carry a provision clearly indicating whether the export license from the
Commerce department has been obtained and/or whether such a license is
required. Notably, NASA IS ostensibly exporting the software since the open
source license is not necessary, if the program is distributed within the
United States or to U.S. citizens. Section 3.J should be revised.

[3] Section 5.F should also be posted on NASA's website since the designated
representative listed on any particular license in the hands of a licensee
is likely to be outdated long before the license terminates.

 - Rod
Rod Dixon
Blog: http://opensource.cyberspaces.org




: --
:
: There is much discussion spent deciding whether NASA can copyright
: software at all.  The license itself says that no copyright is claimed
: in the United States.
:
: The only serious concern that I can see is that the license requires
: the recipient to indemnify the Government of the United States against
: third party lawsuits.
:
: Title: NASA Open Source Agreement Version 1.1
: Submission:
http://crynwr.com/cgi-bin/ezmlm-cgi?3:mss:7698:200402:jfdgbalgdhgblndpmljm
: License:
http://www.nas.nasa.gov/Research/Software/Open-Source/NASA_Open_Source_Agreement_1.1.txt
: Comments: ongoing as of this writing.
: Recommend: more discussion.
:
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