The open source software movement has moved beyond the academic and
business communities to establish a new beachhead--on Cape
Canaveral.
Open Source Initiative, a non-profit organization that certifies
open source software licenses, told BNA March 28 that approval of an
open source agreement drafted by the National Aeronautics and Space
Administration should happen within a matter of weeks, making NASA the
first federal agency to obtain OSI certification.
The certification coincides with the rollout of a pilot program at
NASA that would permit the release of select NASA software on an open
source basis, complementing the agency's current menu of release
options.
What makes this agreement stand out from other OSI-certified
licenses is that it confronts a legal conundrum unique to federal
agencies who create their own software: how do you control downstream
use of a work that itself is not protected under U.S. copyright law?
Homegrown NASA software is not copyrightable in the United States as a
consequence of Section 105 of the Copyright Act, which precludes the
United States from claiming copyright in any work prepared by a
federal employee as part of that person's official duties.
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.
In ProCD, the plaintiff distributed a collection of several
thousand phone directories on CD-ROM subject to a personal use license
agreement. Defendant exploited the content for commercial purposes in
violation of that agreement. When the plaintiff sued for breach of
contract, the district court ruled that the license agreement was
unenforceable because it was preempted by the Copyright Act, under
which simple phone directory listings are not copyrightable. The
Seventh Circuit reversed. Judge Easterbrook concluded that rights
created under contract are not "equivalent" to rights
granted under copyright. So, there is no preemption even assuming the
underlying content is itself not copyrightable.
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)).
Copyright issues aside, the distribution of NASA software also
requires the agency to juggle two, seemingly contrary public mandates
imposed by the National Aeronautics and Space Act of 1958 (Pub. L. No.
85-568). Section 203 of the Act charges NASA to "provide for the
widest practicable and appropriate dissemination of information
concerning its activities and the results thereof." But Section
102 of the Act instructs NASA to "preserv[e] … the role of
the United States as a leader in aeronautical and space science and
technology," arguably imposing a duty to transfer valuable
technology to U.S. industry.
Gary Borda, senior patent attorney, NASA Headquarters, explained
that in applying these provisions to agency software, NASA's legal
team reconciled the mandates this way: widely disseminate the results
of the research but not necessarily the means of achieving those
results.
Researchers Push for Open Source Option.
NASA has had a software release program in place since 1997,
according to Borda, who also spoke at the open source conference at
GW. Responding to requests from NASA researchers to upgrade the
release options to include open source, NASA's legal department formed
the NASA Open Source Legal Team in May 2003.
That effort lead to the creation of the NASA Open Source Agreement
(NOSA). In developing NOSA, Padilla explained that NASA took
"bits and pieces" from several widely used open source
license agreements, including the Mozilla Public License, the GNU
General Public License, and the IBM Public License to develop a custom
agreement for NASA.
A key feature of the agreement is that it permits the software
developer to claim proprietary rights in the larger program into which
the developer inserts the NASA software, so long as the NASA portion
of the program is transferred subject to NOSA.
"The whole point is to engage developers," said Russell
Nelson, a vice president and license committee chairman at OSI, in an
interview with BNA March 28. "It's not just a question of whether
we approve it, but whether others will actually use it."
One usability concern OSI raised with NASA, according to Nelson,
involved a potentially problematic indemnification requirement that
would have required a software developer, making use of the NASA
software, to indemnify the United States. NASA subsequently revised
the clause to clarify its intent that the indemnification applies only
to claims the developer may bring against the United States for losses
arising out of the developer's use of the NASA
software.
Pilot Program Launched.
One of the programs currently available under the NOSA pilot
program is Livingstone2, an artificial intelligence software system
that steps in when human controllers are not available and helps
manage complex systems in the face of hardware failures or unexpected
events. NASA flight-tested the software in 1999 aboard Deep Space 1, a
comet-chaser probe that tested an experimental ion propulsion engine.
The program could have terrestrial applications as well, such as
monitoring chemical plants.
By Michael Warnecke
The current draft of NOSA is available at the Web site of NASA's
Ames Research Center,
http://opensource.arc.nasa.gov/.