LWN: Comments on "NASA and open-source software"

NASA and open-source software

brlcad — Sun, 12 Mar 2023 19:58:03 +0000

NASA was definitely at the forefront of GOSS, especially in the late 90's early 00's when Government agencies were just starting to get involved. The fundamental crafting of a licensed based in contract law instead of copyright law was (and remains) very novel for the time as there are just a couple on OSI's approved list that do not rely on copyright.

That said, there's been great strides in understanding since then that 1) US Gov't can hold copyright (e.g., assignment), 2) US Gov't asserts copyright internationally (despite Berne defaults), and 3) there are ample examples of US Gov't applying a copyright-based license to a Gov't work and nobody blinked.

I'm particularly fond of DoD's modern approach (since 2018, see code.mil) in suggesting most OSI-approved licenses may be used, recommending a few (all copyright-based) to keep proliferation and understanding to a minimum, and adding an INTENT file. That file spells out the caveat that some content may be public domain in some situations, and it leaves it at that.

NASA and open-source software - public domain

ssmith32 — Sun, 19 Feb 2023 18:42:27 +0000

Or, if you assume anyone enforcing anything not that innovative is effectively a troll. That is, broaden the troll definition to cover NPEs.

NASA and open-source software - public domain

Karellen — Fri, 17 Feb 2023 08:56:56 +0000

if you contribute to the project, you grant patent uses.

Only if you own the patent. I was trying to describe the case where you might unknowingly reimplement someone else's patent. Which is entirely possible, even in the absence of patent trolls. (Unless you believe that non-troll patents are in fact so innovative and groundbreaking that the chances of someone else stumbling on the same solution to a similar problem are truly negligible)

NASA and open-source software

gsmecher — Fri, 17 Feb 2023 04:49:54 +0000

> There are some initiatives brewing at NASA that should make these challenges a thing of the past, though.

Unfortunately, NASA is still asking open-source maintainers to provide country-of-origin information. One of the lists I subscribe to received one of these requests earlier this month.

NASA and open-source software

Wol — Fri, 17 Feb 2023 02:22:31 +0000

> would also have to be released under the same license.

Wrong. So long as the two licences are compatible, WHAT licence it is is irrelevant.

What matters is that the two different *copyrights* can be distributed together. If the licences are compatible then that's fine.

Okay, it's *discourteous* to use a different licence, but it's not a problem.

Cheers,
Wol

NASA and open-source software - public domain

david.a.wheeler — Fri, 17 Feb 2023 01:11:18 +0000

No. Most major OSS licenses include a patent grant from all contributors, so if you contribute to the project, you grant patent uses. This is explicit in GPL-3.0 and Apache-2.0, and implicit in MIT and GPL-2.0. I think that's the best argument for being able to enforce licenses.

You're right that this doesn't prevent patent trolls, but no licenses could. That would require a change in law. Patent trolls are generally non-practicing entities.

NASA and open-source software - public domain

david.a.wheeler — Fri, 17 Feb 2023 01:04:36 +0000

Changing the law is hard, and the probability of making things worse is nearly 100%. There are many contractors who want exclusive rights to works developed using government funds, and would try to use such an opportunity to make things worse. This is a non-problem worth not-fixing.

NASA and open-source software - public domain

david.a.wheeler — Fri, 17 Feb 2023 01:01:43 +0000

It's silly for another reason too: there ARE copyrights that can be asserted, just not in the US, so you're being 100% truthful by signing.

NASA and open-source software - public domain

Paf — Fri, 17 Feb 2023 00:55:30 +0000

It seems materially different to explicitly license a whole work where it’s in the public domain and you know it vs small portions of other works.

NASA and open-source software - public domain

rfontana — Thu, 16 Feb 2023 23:58:02 +0000

My impression has been that some US government agency lawyers (possibly all patent lawyers by training) believe, or formerly believed, that because the Copyright Act says that (US) copyright protection is not available for works of the US government, the act of a US civil servant seeming to grant a nominal license to (in the US) nonexistent copyrights was an act akin to a high crime or horrible sin. In reality, in FOSS, everyone grants nominal licenses to nonexistent copyrights all the time, because all software contains elements that are in the public domain.

NASA and open-source software

rfontana — Thu, 16 Feb 2023 23:46:31 +0000

I think the gist of it is that the NASA lawyers who drafted the original NASA Open Source Agreement must have been captivated by the copyleft paradigm (as admittedly many lawyer enthusiasts were in those early days of open source) and wanted ambitiously to create a license with copyleft or copyleft-like provisions comparable to the GPL that would somehow be consistent with the statutory preclusion of copyright in works of NASA civil servants.

The submitted versions of the revised NOSA (which occurred mostly during the time I was on the OSI board) however had a number of problems which may have come down simply to poor drafting, but I had a concern that the NASA lawyers (who seemed to be primarily patent lawyers by training) were trying to draft the license in such a way that patent licensing obligations would not apply equally to NASA and to NOSA licensees. (NASA has a revenue-generating patent portfolio program.)

NASA and open-source software

Cyberax — Thu, 16 Feb 2023 21:45:31 +0000

> However, if that new driver is released under the GPL, you have effectively released the work product of a government employee outside of the public domain.

It's not a problem at all, in fact GPL explicitly allows this. You can release the driver in public domain, but it can be distributed only under GPL conditions. I.e. you can't make it private and distribute it under a commercial license.

NASA and open-source software

Kluge — Thu, 16 Feb 2023 21:22:48 +0000

A patch is often (though not always) a derived work of the parent code, is it not? Therefore a derived-work patch to copylefted code (not sure about BSD) would also have to be released under the same license.

NASA and open-source software

dullfire — Thu, 16 Feb 2023 21:14:41 +0000

> Say a NASA programmer wants to modify an existing Linux kernel driver to make it work for a new Mars rover. The new driver is a derived work of the old driver, which was under the GPL. So the new driver is similarly de facto GPL code.

This misunderstands what copyrights NASA would be eligible for if it was a private organization. A private organization would only have copyright on the patch they wrote. There is unlikely to be any issues with releasing the patch itself as public domain. Of course when applied to the GPL'd driver, the result is GPLd, but NASA isn't authoring the new driver, just the public domain patch.

NASA and open-source software

Kluge — Thu, 16 Feb 2023 20:29:50 +0000

I think the problem is related to derived works. Say a NASA programmer wants to modify an existing Linux kernel driver to make it work for a new Mars rover. The new driver is a derived work of the old driver, which was under the GPL. So the new driver is similarly de facto GPL code. It can be used within NASA without a problem.

However, if that new driver is released under the GPL, you have effectively released the work product of a government employee outside of the public domain.

NASA and open-source software - public domain

Karellen — Thu, 16 Feb 2023 14:54:00 +0000

simply not having a copyright doesn't mean that it's legal to use as OSS, because it could still be covered by patents and/or trademarks.

But isn't that the case for any OSS? Can't it be the case for OSS you've written yourself, even unknowingly? If you're not aware that a term is actually a trademark, or because some patent you had no way of knowing exists actually does?

NASA and open-source software - public domain

kleptog — Thu, 16 Feb 2023 13:45:22 +0000

Sounds to me the actual fix would be the US changing the law to state, instead of "no copyright" (which is confusing), that government employee's work is released under "US Government copyright" and then describe the licence explicitly. Make sure that licence is open-source friendly and you've killed all the birds with one stone.

For example, I don't really think attribution needs to be a deal-breaker here.

NASA and open-source software - public domain

randomguy3 — Thu, 16 Feb 2023 13:33:24 +0000

Thanks, that was a really helpful explanation!

NASA and open-source software - public domain

amacater — Thu, 16 Feb 2023 08:50:56 +0000

It's precisely a problem anywhere else in the world other than the US. Public domain doesn't really exist in the EU or the UK, for example, and disclaimers of all interests can be problematic in, say, Germany.

The US is an outlier here, especially if PD applies within the US but the US government could, if it chose, apply copyright to anyone outside the US for software written by its public servants.

Apache and so on want licensing under the Apache licence as much for clarity as for anything else. Due diligence on software license terms will mean that mixing PD with anything else causes a licensing headache. NASA's getting permission to use other licenses is a big win for all here. Much the same argument applies to Crown copyright for UK Government works - that also causes problems for others trying to deal with it - my understanding is that Crown copyright can be waived at the discretion of the originating entity with appropriate sign off and is, essentially, just attribution.

NASA and open-source software - public domain

david.a.wheeler — Thu, 16 Feb 2023 01:40:07 +0000

> I don't quite follow the interaction between "under US copyright law, a work prepared by an officer or employee of the United States Government as part of that person's official duties is in the public domain" and the parts about the "NASA Open Source Agreement" and difficulties for employees to contribute to open source software in an official capacity. If NASA employees produce public domain works, then surely that's trivially compatible with pretty much any open source or free software license? And how does the NASA Open Source Agreement factor in, or the later mentions of MIT (etc), if the work is not copyrighted anyway?

You're right, if there's no copyright AND there's no other constraint (e.g., patents & trademarks), you can insert the no-copyright work into a work with a copyright. So it's not a "problem" in the typical sense, because you CAN legally do it.

The usual objection involves government folks being worried that they'll be re-paying for software the government already paid to develop. OSS licenses - even permissive ones - typically *do* impose some requirements, typically an attribution requirement. If the software has to reveal that it's written from XYZ, a user can find XYZ. You can't impose *any* requirements on a work without copyright, including an attribution requirement. In my opinion, the real solution is that government people should do market research before they buy anything, as already required by regulation. Market research in most cases would quickly find them alternatives. But government employees are typically overworked, and market research is often skimped as a result. That still doesn't really excuse it though; don't pay a lot of money before looking at your alternatives.

The blog post "How to apply an Open Source License to a US Government Work" by Dan Risacher https://risacher.org/jfdi/2014/07/how-to-apply-an-open-so... does an awesome job discussing this. Basically:
1. Just release as public domain.
2. Create a joint work that's partly public domain.
3. Rely on the fact that "no copyright" only applies within the US; copyright still applies outside the US.

There are some weirdnesses in this case. Some organizations (e.g., Apache Software Foundation) require organizations to sign statements involving copyright, and government lawyers get all confused. Historically organizations would make exceptions for the US government, but many foundations aren't familiar with the peculiarities of the US government. There's still a copyright outside the US, so I think they can simply sign with a clean conscience, but I'm not a government lawyer so they don't need to listen to me.

The OSI's position is that "public domain is not a license". That is true in a sense, but misleading. There's a license, it's just that it's granted by the laws of the relevant nation instead of being a separate document. A bigger concern by the OSI - and one that *is* reasonable - is that simply not having a copyright doesn't mean that it's legal to use as OSS, because it could still be covered by patents and/or trademarks. Trademarks are easily dealt with, but patents aren't. If software is covered by patents, then the lack of copyright is irrelevant, and in this case the patent permissions granted by typical OSS licenses don't work (like the implicit ones in MIT and GPL 2.0, or the explicit ones in Apache-2.0 and GPL-3.0).

My personal opinion is that this is mostly a NASA "problem", in the sense that NASA's lawyers think it's a problem even though most of the rest of the US government doesn't think it's a problem to release code as public domain. Many programs have been released without copyright (e.g., expect), and the sky did not fall.

NASA and open-source software

randomguy3 — Wed, 15 Feb 2023 23:50:37 +0000

I know from previous things I've read that there's a caveat here - work done by companies under contract to US government agencies *can* be copyrighted, so it's possible some of the licensing refers to this.

NASA and open-source software

dullfire — Wed, 15 Feb 2023 23:43:08 +0000

Yeah that confuses me to. Furthermore, I read the article to say that NASA will release software (new software, not patches) under open licenses like MIT and BSD ... but those licenses are copyright licenses... over thing which NASA can not, legally, have copyright.

It makes sense they could submit patches to BSD/MIT/GPL'd project. Those projects can totally use public domain patches. But I'm pretty sure NASA can't issue any licensing terms for their own software.

NASA and open-source software

randomguy3 — Wed, 15 Feb 2023 23:04:59 +0000

I don't quite follow the interaction between "under US copyright law, a work prepared by an officer or employee of the United States Government as part of that person's official duties is in the public domain" and the parts about the "NASA Open Source Agreement" and difficulties for employees to contribute to open source software in an official capacity.

If NASA employees produce public domain works, then surely that's trivially compatible with pretty much any open source or free software license? And how does the NASA Open Source Agreement factor in, or the later mentions of MIT (etc), if the work is not copyrighted anyway?

NASA and open-source software

amacater — Wed, 15 Feb 2023 22:24:08 +0000

For those of us that were in the room, it went down very well indeed. Dr. Crawford is the sort of scientist who can also code and talk and be inspirational - it struck just the right note (though NASA is still only employing Americans - the rest of us have to be content with being contractors / sub-contractors).