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From "Roy T. Fielding" <field...@gbiv.com>
Subject Re: [Non-DoD Source] US Army Research Laboratory Open Source License (ARL OSL)
Date Wed, 27 Jul 2016 22:16:56 GMT
> On Jul 27, 2016, at 11:58 AM, Karan, Cem F CIV USARMY RDECOM ARL (US) <cem.f.karan.civ@mail.mil>
wrote:
> 
> I see your point, and your clause is a really good one, but the problems of 
> liability, etc. still need to be covered for the portions of the code that are 
> not protected by copyright.

It isn't a clause.  Effectively, it is an additional license that a recipient
can choose to use if they ever have a need.  No, they won't ever have that need,
since the copyright owners are effectively stopped by their own contributions.
The only remaining concern would be contributions that are made by someone
who is not (controlled by) the copyright owner, which can only be addressed
by the process surrounding accepting contributions.

>  As I understand it (I am not a lawyer, so I may 
> be getting this wrong), a license is a contract that pertains to intellectual 
> property (e.g., copyright) and contracts always have clauses.  Some contracts 
> put in a severability clause (https://en.wikipedia.org/wiki/Severability) to 
> ensure that as much of the contract survives as possible should any part be 
> found unenforceable.  The Apache 2.0 license doesn't have that, so what 
> happens if the license is found to not cover the uncopyrighted portions?

It isn't relevant if the license in unenforceable, since nobody is trying
to enforce it.

>  Does that open up the government to liability claims?

No.

>  What about other claims that 
> the Apache license would protect against if it were in force?  We need a 
> contract that works for all portions of the code, whether or not there is a 
> copyright.

The software license is intended to protect the recipient of the software,
not the organization that chose the license.  You can't arbitrarily disclaim
responsibility for your acts just by posting a notice of disclaimer.
The only thing the Apache license disclaims is liability for the recipient
choosing to make use of the rights being given to them, which is something
you cannot (and don't need to) disclaim for stuff in the public domain.

In any case, nobody is going to sue the government for making software
public domain, since that is required by law.  What you might want is a
legal disclaimer on a website that is hosted by the government and on
which it publishes information for distribution to the public, but that
should reflect the terms of use for that service.  It has nothing whatsoever
to do with the license on what is being distributed.

> We can impose copyright like restrictions by contract even though 
> there might not be a copyright.

No, that's not how copyright law works (you don't need a contract in order
to do what you are already legally entitled to do) and other laws,
like the Freedom of Information Act, would immediately make such a
contract null and void.  The government can impose other restrictions,
such as required security clearances and procedures, and might even be
able to control distribution under a patent if one has been granted.

....Roy


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