Fwd: [mil-oss] Free Public License

[Christopher Sean Morrison]

Apologies to those also joined to mil-oss, but I think my below message begs for more widespread dissemination.

Cheers!

Sean

Begin forwarded message:

From: Christopher Sean Morrison <brl...@mac.com>

Subject: [mil-oss] Free Public License

Date: November 13, 2015 at 2:49:40 PM EST

To: mil...@googlegroups.com

Hi All,

The OSI board has just (yesterday) approved a new permissive license that has interesting applicability to Gov’t works, called the Free Public License.  The license in its entirety is as follows:

Free Public License 1.0.0
	Permission to use, copy, modify, and/or distribute this software for any
	purpose with or without fee is hereby granted.
	THE SOFTWARE IS PROVIDED "AS IS" AND THE AUTHOR DISCLAIMS ALL WARRANTIES
	WITH REGARD TO THIS SOFTWARE INCLUDING ALL IMPLIED WARRANTIES OF
	MERCHANTABILITY AND FITNESS. IN NO EVENT SHALL THE AUTHOR BE LIABLE FOR
	ANY SPECIAL, DIRECT, INDIRECT, OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES
	WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER IN AN
	ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF
	OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THIS SOFTWARE.

It’s essentially a license that lets anyone do anything except hold liable, similar to CC0 and WTFPL, but with a rather novel legal approach.  It’s literally a reduction of the permissive ISC license (which itself is a simplification of the MIT license) with the copyright statement and attribution retention requirement removed.  In effect, it is a simple public domain dedication in license form.

This has some interesting applicability and implications for Gov’t works…

Cheers!

Sean

[Eric Mill]

This totally has interesting applicability for government works!

However, one thing it doesn't seem to address is how rights are handled internationally. The government team I'm on (18F) uses CC0, and that's in part because we want to make sure that contributors and users from anywhere in the world have the same experience and legal certainties that contributors and users in the US have.

The converse is also an issue -- in the US, government works are public domain no matter what license the software project wants to use. The FPL starts with "Permission...is hereby granted.", but in the US, a government team doesn't hold copyright that lets them grant this permission.

Our team attempts to thread this needle by making our standard LICENSE include a tiny bit of boilerplate on top:

https://github.com/18F/open-source-policy/blob/master/LICENSE.md

> As a work of the United States Government, this project is in the public domain within the United States.

> 

> Additionally, we waive copyright and related rights in the work worldwide through the CC0 1.0 Universal public domain dedication.

We're definitely just making up that boilerplate ourselves, but both sentences are pointers to external laws/documents, so it's felt pretty solid.

It looks like FPL isn't *trying* to do the same thing that CC0 does, which is totally fine -- FPL looks like a straightforward, simple license that will make it easier for more people to dedicate stuff to the public domain. But for other government teams like us that want to eliminate all doubt over license status internationally, I'm not sure it's going to do that.

-- Eric

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[Christopher Sean Morrison]

On Nov 13, 2015, at 3:25 PM, Eric Mill <er...@konklone.com> wrote:

> However, one thing it doesn't seem to address is how rights are handled internationally. The government team I'm on (18F) uses CC0, and that's in part because we want to make sure that contributors and users from anywhere in the world have the same experience and legal certainties that contributors and users in the US have.

Things are really simple for US Gov’t works internationally… The Gov’t has rights to the software, international copyright protection, and could offer software under literally any license it desires (that does not violate regulation, ITAR, yada yada), just NOT a licensed based on copyright law in the US due to the copyright protection exemption.

The FPL does not assert or require copyright rights are held on the work — that’s the novel aspect that makes it unique from every other OSI-approved license. It simply asserts that the permission is bestowed to the recipient. The Gov’t does have rights, even domestically. They’re just usually covered by federal regulation or (more conventionally) have distribution controlled under contract law and disclosure agreements.

I don’t see this new FPL being any less uncertain internationally than the ISC/MIT/BSD licenses. At least to my knowledge, this class of permissive licensing has not been demonstrated as problematic in any court, domestic or international. To the contrary, the mere act of removing the copyright statement allows this license to stand on other (unstated) rights — e.g., related or neighboring rights as CC0 specifies. That is incredibly convenient…

> The converse is also an issue -- in the US, government works are public domain no matter what license the software project wants to use. The FPL starts with "Permission...is hereby granted.", but in the US, a government team doesn't hold copyright that lets them grant this permission.

You may know this already, but that’s not the whole picture or entirely true. US Gov’t works are covered under a mixture of federal regulation in the US and copyright law (Berne Convention) outside the US. Sure, the US Gov’t can’t claim copyright (in the US), but they may be assigned and hold US copyright rights, e.g., under a FARS/DFARS contract. Even works that were 100% Gov’t-employee-performing-their-duties, the US Gov’t has international copyright protection and a complex set of regulatory rights and releasability protections in the US.

Of course, the legal team of different agencies will undoubtedly have verying appetites for releasing a work under the FPL, but I bet I could have gotten BRL-CAD released MUCH faster had this existed back in the late 90’s… There is beauty and complexity in the overt simplicity. :)

Cheers!
Sean

p.s. CC0 certainly has similar features and desirability (love it and use it myself) but is lamentably not yet OSI-certified. CC withdrew it from consideration after extended discussion surrounding the patent clause. I’m not alone wishing they’d resubmit it for certification, with or without addressing the concerns OSI raised.

[Eric Mill]

On Fri, Nov 13, 2015 at 9:08 PM, Christopher Sean Morrison <brl...@mac.com> wrote:

On Nov 13, 2015, at 3:25 PM, Eric Mill <er...@konklone.com> wrote:

Things are really simple for US Gov’t works internationally… The Gov’t has rights to the software, international copyright protection, and could offer software under literally any license it desires (that does not violate regulation, ITAR, yada yada), just NOT a licensed based on copyright law in the US due to the copyright protection exemption.

...[snip]...

> The converse is also an issue -- in the US, government works are public domain no matter what license the software project wants to use. The FPL starts with "Permission...is hereby granted.", but in the US, a government team doesn't hold copyright that lets them grant this permission.

You may know this already, but that’s not the whole picture or entirely true.  US Gov’t works are covered under a mixture of federal regulation in the US and copyright law (Berne Convention) outside the US.  Sure, the US Gov’t can’t claim copyright (in the US), but they may be assigned and hold US copyright rights, e.g., under a FARS/DFARS contract.  Even works that were 100% Gov’t-employee-performing-their-duties, the US Gov’t has international copyright protection and a complex set of regulatory rights and releasability protections in the US.

You're absolutely right that the US Gov't can claim copyright outside the US, and get it transferred to them inside the US through contractor copyright, and other random regulatory weirdness.

I'm saying that my team views all of that as, essentially, a bug. :) One to be fixed by normalizing our work to the "international public domain", whether or not contractors are involved. (We also attack this at the pre-contracting stage, by incorporating language in our RFPs that states all work done will be public domain from the get go.) 

Obviously we can only release rights that we have, and when we're legally allowed to do so, and we try to appropriately describe any unusual situations in that repo's license file. But those are pretty rare.

 

Of course, the legal team of different agencies will undoubtedly have verying appetites for releasing a work under the FPL, but I bet I could have gotten BRL-CAD released MUCH faster had this existed back in the late 90’s…  There is beauty and complexity in the overt simplicity.  :)

Absolutely, and everyone should optimize for meeting their team's desired outcome in the political context they're in. The more the code that the FPL helps release to the public, the better!

I remember getting a note from our agency's lawyers saying something like, giving up all rights via CC0 is less preferable than a traditional permissive or copyleft open source license. But that's just advice, and our team stuck to our desired outcome.

 

Cheers!
Sean

p.s. CC0 certainly has similar features and desirability (love it and use it myself) but is lamentably not yet OSI-certified.  CC withdrew it from consideration after extended discussion surrounding the patent clause.  I’m not alone wishing they’d resubmit it for certification, with or without addressing the concerns OSI raised.

I'd love for CC0 to be resubmitted too, and I bet that could happen if there was any signal from OSI or its community that the patent clause would be less of an issue, or any signal from CC that they could publish a new version removing it. I don't really know why it was a sticking point for either side, but it doesn't bother me either way. I only have the energy to care about so many things. ;)

-- Eric

 

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konklone.com | @konklone

[John Scott III]

How does this license interact with other licenses? 

Sent from my iPhone

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[Christopher Sean Morrison]

On Nov 14, 2015, at 7:46 AM, John Scott III <jms...@gmail.com> wrote:

> How does this license interact with other licenses?

FPL licensed code is compatible with literally anything.

It imposes no requirements on the recipient, not even attribution, so it has the same effect as a public domain dedication.

Cheers!
Sean