Subject: Re: For Approval: NASA Open Source Agreement Version 1.1
From: "Mark W. Alexander" <slash@dotnetslash.net>
Date: Fri, 13 Feb 2004 08:46:21 -0500

On Fri, Feb 13, 2004 at 12:05:08AM -0800, Richard Schilling wrote:
> I'm just saying that a stance that NASA, a US government agency with 
> "deep pockets", should remove imdenification wording is a haneous 
> idea.  And in general bashing the license on non-licensing issues 
> doesn't do any good.  It actually hurts open source license 
> development.  It's just my opinion.

Ok, I'm new here, but I've been a U.S. citizen for some time, and I'm confused.
(I don't know if that's a cause and effect thing or not ;)

The original request stated:

 "The intent is for NOSA is to be the controlling agreement for all
 distribution and redistribution of software originated by NASA,
 including derivative works."

Title 17, section 101 states:

 (C)

 any work not subject to copyright protection under this title.

 'A ''work of the United States Government'' is a work prepared by an
 officer or employee of the United States Government as part of that
 person's official duties.'

Title 17, section 105 states:

 "Copyright protection under this title is not available for any work of
 the United States Government, but the United States Government is not
 precluded from receiving and holding copyrights transferred to it by
 assignment, bequest, or otherwise"

Therefore "work originated at NASA", at least by NASA employees cannot
be copyrighted. If they are not copyrighted, there is not only no need
for a license, any such license would be trumped by copyright law.

Back to the original request:

 "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.

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

  iii.  NASA policy requires an effort to accurately track usage of 
  released software for documentation and benefits realized?purposes.
  (sic)"

NASA legal counsel doesn't seem to be aware of the Title 17 restrictions
on government works. Policy cannot trump Title 17 requirements.
Adherence to ii, precludes i and iii.

Title 17 does state that the U.S. government can hold copyrights when
the are transfered to them, so the _can_ maintain copyrighted works
either performed as a "work for hire" or purchased by the goverernment.
In such cases, as an open source advocate I can see how an appropriate
open source license would be useful. As a citizen and taxpayer, however,
I can also see the point of view that the U.S. citenzenry paid for it so
they should have unrestricted access to it.

I'm not trying to be combative, here. I'm just trying to understand how
all these points jive with NASA's intentions. As it stands now, any code
that NASA produces that is not subject to security classification is
probably already available for any use to anyone who files an FOI
request. The response to such a request would be devoid of any
indemnification or tracking restrictions.

Can anyone make NASA's policy, Title 17, and the proposed license all
make sense to me at the same time?

mwa
-- 
Mark W. Alexander
slash@dotnetslash.net
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