Subject: RE: For Approval: NASA Open Source Agreement Version 1.1
From: "Lawrence E. Rosen" <lrosen@rosenlaw.com>
Date: Thu, 12 Feb 2004 12:21:19 -0800

 Thu, 12 Feb 2004 12:21:19 -0800
Bryan,

Thanks for your detailed explanation of the reasons for your new license. I
haven't read the license itself yet, but I want to comment on the supposed
differences you identified between the NASA license and other
already-approved licenses:

>          i.  NASA legal counsel requires that all NASA 
> releases of software 
> include indemnification of the U.S. Government from any third party 
> liability arising from use or distribution of the software.  See 4.B.

All open source licenses include very broad disclaimers of liability. Does
the government also require indemnification? Why? I'm sorry, but I can't
conceive of any open source distributor or contributor to NASA software who
would dare to indemnify the US government or any of its agencies. You're the
one with the deep pockets and with a Congress that can legislate any
protections you need against tort, contract or intellectual property
liability. Why should we assume those risks for you? :-) Please stick with a
disclaimer of liability; every open source license has one.

>          ii.  Federal Statute mandates that the U.S. 
> Government can only be 
> held subject to United States federal law.  See 5.C.

The Open Software License (OSL, www.opensource.org/licenses/osl-2.0.php)
establishes jurisdiction, venue and governing law for a US-based licensor
(such as a US government agency) in the United States. See OSL  11.
[Foreign readers of this email should take comfort that the OSL is not
US-centric; jurisdiction under the OSL lies wherever the licensor "resides"
or "conducts its primary business."]

>          iii.  NASA policy requires an effort to accurately 
> track usage of 
> released software for documentation and benefits 
> realized?purposes.  See 3.F.

Such provisions are not allowed in an open source license. Reporting
requirements are viewed as unreasonable limitations on the rights of
licensees to do anything they want internally with open source software
(e.g., make copies, derivative works, etc.). On the other hand, because of
"reciprocity" (see my further comment below) you'll be able to see
improvements to NASA software that are distributed by others, and benefit
from them. That will be measurable.

>          iv. Federeal Statutes and NASA regulations requires 
> a prohibition 
> in NASA contracts against representations by others that may 
> be deemed to 
> be an endorsement by NASA.  See 3.E.

Various licenses do that. See, for example, OSL sections 4 [Exclusions from
License Grant] and 6 [Attribution Rights].

>          v.  Because it is important that each of the aforementioned 
> clauses be a part of each open source agreement relating to 
> NASA released 
> software, the proposed agreement must mandate that distribution and 
> redistribution of the software be done under the aegis of 
> NOSA (mandatory 
> domination similar to GPL).  See 3.A.

I call this feature "reciprocity." Lots of licenses do that, including the
GPL, MPL and CPL; similarly, the OSL contains a reciprocity condition that
requires any licensee who distributes derivative works of OSL-licensed
software to do so under the OSL. You don't need to write a new license to
obtain that license feature.

I'm sorry if I've misunderstood your license by relying on your summary of
it rather than the license itself. I intend to read through the license
itself soon, but I wanted to get these general questions on the table first.

Regards, 

/Larry Rosen


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