Subject: Re: For Approval: NASA Open Source Agreement Version 1.1
From: Richard Schilling <rschi@rsmba.biz>
Date: Fri, 13 Feb 2004 01:09:47 -0800

Maybe it's just me, but I keep getting back to open source software 
licenses as a means to efficiently distribute software and allow people 
ready access to the knowledge it represents, and not so much as a 
mechanism to try a get license-savvy organizations to let their guard 
down.

On 2004.02.12 21:03 Lawrence E. Rosen wrote:
> I'll reply off-list.
> 
> I'm not ignorant about licenses or law. I'm an attorney. I'm general
> counsel
> of Open Source Initiative. I have written a book about open source
> licensing
> that will be published in a few months. And so I was not responding to
> NASA
> and its lawyers out of ignorance or as an "armchair lawyer."
> 
> They (and you) don't have to agree with me, but please respect my
> right to
> express myself. I'm not just spouting hot air.

I didn't see a many points in your original posting that served any 
purpose other than to "call on the carpet" the motives and approach of 
the authors.

If you are a lawyer, of all people, I would expect to see more 
constructive discussion about the license itself and how it can be made 
to comply with opensource.org's requirements.  You should know, with 
all due respect to you and your profession, that providing specific 
reasons/alternatives, and avoiding taunting questions, is appropriate 
in helping NASA get their license to meet opensource.org requirements.  
If you're acting as council, please council on what they can do, not 
what they should have done.  We would all learn from that approach.

And, yes, I'm offended at the tone of the response NASA got to their 
posting.  They've done more for open source work than many other 
organizations would even dream.  They invented Beowulf cluters, for 
heaven's sake.

Did I misread your response?  Perhaps, but read it as such I did.  I 
certainly respect what you do, but I also expect to see more respect 
directed to submitters of new licenses.

Now, with respect to the INDEMIFY clause (section 8), which says :

B. Waiver and Indemnity: RECIPIENT AGREES TO WAIVE ANY AND ALL CLAIMS
AGAINST THE UNITED STATES GOVERNMENT, ITS CONTRACTORS AND
SUBCONTRACTORS, AS WELL AS ANY PRIOR RECIPIENT AND SHALL INDEMNIFY AND
HOLD HARMLESS THE UNITED STATES GOVERNMENT, ITS CONTRACTORS AND
SUBCONTRACTORS, AS WELL AS ANY PRIOR RECIPIENT FOR ANY LIABILITIES,
DEMANDS, DAMAGES, EXPENSES OR LOSSES THAT MAY ARISE FROM RECIPIENT'S
USE OF THE SUBJECT SOFTWARE, INCLUDING ANY DAMAGES FROM PRODUCTS BASED
ON, OR RESULTING FROM, THE USE THEREOF.  RECIPIENT'S SOLE REMEDY FOR
ANY SUCH MATTER SHALL BE THE IMMEDIATE, UNILATERAL TERMINATION OF THIS
AGREEMENT.

There is nothing in opensource.org's criteria that says the licensing 
party shall refrain from waivers and indeminification.  NASA's policies 
require specific wording in section 8, and if that wording is not 
significantly different than what has been accepted before, then I 
don't see a problem.  It's an administrative detail, really.

I would like to see specific argument as to why, in NASA's case this 
wording does not need to apply to their sub-contractors.  To me this is 
more appropriate to NASA's sub-contracting needs than what's in the 
other licenses.  They know what's best for them, so let them 
demonstrate that.

And if opensource.org throws out a license on this issue, I think it 
would be wise for opensource.org to review its criteria.  I would 
suggest separating (in opensource.org's criteria) certain areas when 
evaluating new licenses.  For example, develop clear criteria for the 
following and specify which items make/break an open source designation:

	distribution,
	re-distribution,
	deriverative works,
	copyright,
	waivers,
	deriverative works,
	related services,
	quality controls.


opensource.org says what a license should have, but the website doesn't 
say enough about what the authors *can* do with their license.

Specifically, I maintain that copyright and waivers are *not* 
determinants of an open source license, and I think it's improtant (if 
that's opensource.org criteria as well) to clearly state that.  I would 
also suggest that as long as distribution is met, regardless of it's 
means, with or without re-distribution, the license be considered open 
source.

 From the end user's perspective getting a software product from one 
place -vs- 1,000 places and having the software tracked are not 
determinants of an open source license, per se.  They get freedom of 
availability, use, modification and a means to submit changes.  And 
that's what defines a collaborative project.  All else is optional.

Availability of the code and documentation, and the right to modify for 
personal use seem to me to be the baseline criteria to any open source 
license. 

Richard 
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