YESSA to NOSA: NASA's open source license to get OSI approval

BNA is running a great piece on the ins and outs of NASA's coming certification of their NASA Open Source Agreement (NOSA) license by the OSI ("NASA Will Become First Agency to Get OSI Certification of Open Source Agreement").

The interesting conundrum seems to have been: If a government agency cannot claim copyright in a work (17 USC 105), how can it positively release software under a software license (which has copyright as a foundation). The answer appears to be in ProCD Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996).

Robert Padilla, chief patent counsel at NASA's Ames Research Center, described the legal problem as a "weird situation." Padilla, who spoke March 18 at a conference on open source software at George Washington University in Washington, D.C., pointed to ProCD Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) (1 ECLR 298, 6/28/96) as the legal basis to support the enforceability of NASA's contract rights.

NASA Adopts ProCD Reasoning.

[...]

The upshot is NASA may not be able to claim U.S. copyright in programs written solely by employees, but that does not prohibit the space agency from enforcing its NASA Open Source Agreement (NOSA) against those who use the software subject to the agreement.

Programs created by NASA contractors present an easier case, as nothing in the Copyright Act precludes the United States from obtaining by assignment copyrights owned by others, Padilla explained. Federal Acquisition Regulations applicable to NASA permit the agency to direct an assignment of copyrights from the contractor in software created pursuant to the contract (NASA FAR Supplement � 1852.227-14(d)(3)(i)-(iii)).

That is, they aren't prohibited from enforcing the terms of an agreement entered into by the end-user. This gets at the heart of contracts vs. licenses in software. So, NASA will have an interesting interest in click-wrap software agreements. Their NOSA license leaves me saying YESSA!

Posted by joebeone at Abril 5, 2004 01:23 PM | TrackBack