DFSG-compatibility of X13-ARIMA-SEATS (U.S. federal govt. software)

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DFSG-compatibility of X13-ARIMA-SEATS (U.S. federal govt. software)

Sébastien Villemot-2
Dear fellow developers,

I would like to package X13-ARIMA-SEATS¹, which is software developed
at the U.S. Department of Commerce. As such, it is not copyrighted in
the U.S., and rights to use, redistribute and modify are explicitly
granted outside the U.S.

However, the last clause of the licence says that the “user agrees to
make a good faith effort to use the Software in a way that does not
cause damage, harm, or embarrassment to the United States/Commerce.”
This may be seen as a restriction on use (and therefore contrary to
DFSG§6), though it is unclear to me whether this is a significant-
enough restriction to make it non-free, and whether it is really
enforceable.

Do you think that this license is DFSG-compatible?

Thanks in advance for your insights,

¹ https://www.census.gov/srd/www/x13as/


P.S.: below is full copy of the license:

This Software was created by U.S. Government employees and therefore is
not subject to copyright in the United States (17 U.S.C. §105).  The
United States/U.S. Department of Commerce (“Commerce”) reserve all
rights to seek and obtain copyright protection in countries other than
the United States. The United States/Commerce hereby grant to User a
royalty-free, nonexclusive license to use, copy, and create derivative
works of the Software outside of the United States.

The Software is provided to the User and those who may take by, through
or under it, “as is,” without any warranty (whether express or implied)
or representation whatsoever, including but not limited to any warranty
of merchantability. The Software is taken hereunder without any right
to support or to any improvements, extensions, or modifications, except
as may be agreed to separately, in writing, by Commerce.  

User, on behalf of itself and all others who take by, through or under
it, hereby and forever waives, releases, and discharges the United
States/Commerce and all its instrumentalities from any and all
liabilities and obligations in connection with the use, application,
sale or conveyance of the Software. User shall indemnify and hold
harmless the United States/Commerce and its instrumentalities from all
claims, liabilities, demands, damages, expenses, and losses arising
from or in connection with User's use, application, sale or conveyance
of the Software, including those who take by, through or under User 
whether or not User was directly involved. This provision will survive
termination of this Agreement and will include any and all claims or
liabilities arising under intellectual property rights, such as
patents, copyrights, trademarks, and trade secrets. If User of software
is an Executive Agency of the United States, this clause is not
applicable.

The construction, validity, performance, and effect of this Agreement 
for all purposes will be governed by Federal law of the United States.

User agrees to make a good faith effort to use the Software in a way
that does not cause damage, harm, or embarrassment to the United
States/Commerce. The United States/Commerce expressly reserve all
rights and remedies.

--
⢀⣴⠾⠻⢶⣦⠀  Sébastien Villemot
⣾⠁⢠⠒⠀⣿⡁  Debian Developer
⢿⡄⠘⠷⠚⠋⠀  http://sebastien.villemot.name
⠈⠳⣄⠀⠀⠀⠀  http://www.debian.org

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Re: DFSG-compatibility of X13-ARIMA-SEATS (U.S. federal govt. software)

Xavier Guimard
Le 03/08/2018 à 11:44, Sébastien Villemot a écrit :

> Dear fellow developers,
>
> I would like to package X13-ARIMA-SEATS¹, which is software developed
> at the U.S. Department of Commerce. As such, it is not copyrighted in
> the U.S., and rights to use, redistribute and modify are explicitly
> granted outside the U.S.
>
> However, the last clause of the licence says that the “user agrees to
> make a good faith effort to use the Software in a way that does not
> cause damage, harm, or embarrassment to the United States/Commerce.”
> This may be seen as a restriction on use (and therefore contrary to
> DFSG§6), though it is unclear to me whether this is a significant-
> enough restriction to make it non-free, and whether it is really
> enforceable.
>
> Do you think that this license is DFSG-compatible?
>
> Thanks in advance for your insights,
>
> ¹ https://www.census.gov/srd/www/x13as/
Hello,

the next sentence in the same paragraph says "The United States/Commerce
expressly reserve all rights and remedies", so it could means that "good
faith effort" is a real constraint, not just a wish

My 2 cents…


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Re: DFSG-compatibility of X13-ARIMA-SEATS (U.S. federal govt. software)

Ben Finney-3
In reply to this post by Sébastien Villemot-2
Sébastien Villemot <[hidden email]> writes:

> I would like to package X13-ARIMA-SEATS¹, which is software developed
> at the U.S. Department of Commerce. As such, it is not copyrighted in
> the U.S., and rights to use, redistribute and modify are explicitly
> granted outside the U.S.

Thank you for seeking to package and maintain this in Debian.

And thanks for posting the full text of the license under discussion.

> However, the last clause of the licence says that the “user agrees to
> make a good faith effort to use the Software in a way that does not
> cause damage, harm, or embarrassment to the United States/Commerce.”
> This may be seen as a restriction on use (and therefore contrary to
> DFSG§6)

The term “use” is too vague, IMO, for help in discussing whether some
action is restricted by copyright. You are right to point to DFSG§6,
which distinguishes restrictions on “field of endeavour”.

I think this case does in part depend on whether “[…] not cause damage,
harm, or embarrassment to the United States/Commerce” excludes some
field of endeavour. If it does, the restriction fails DFSG§6.

> though it is unclear to me whether this is a significant-enough
> restriction to make it non-free, and whether it is really enforceable.

It is prudent, IMO, to assume that no restriction is beyond being
enforced by those who wish to control how recipients use published
works. Certainly, restrictions we would have thought trivial in past
decades are now taken seriously by international copyright law.

So, even if we think the restriction may today not be enforced, the
standard should not be enforcibility but whether it conforms to DFSG.

> Do you think that this license is DFSG-compatible?

I'd like to see discussion of fields of endeavour for a work like this,
which may violate the restriction, and whether excluding those would
count as a restriction on freedom of endeavour.

--
 \            “[T]he great menace to progress is not ignorance but the |
  `\           illusion of knowledge.” —Daniel J. Boorstin, historian, |
_o__)                                                        1914–2004 |
Ben Finney

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Re: DFSG-compatibility of X13-ARIMA-SEATS (U.S. federal govt. software)

Sébastien Villemot-2
Le vendredi 03 août 2018 à 20:50 +1000, Ben Finney a écrit :
> > Sébastien Villemot <[hidden email]> writes:

> > However, the last clause of the licence says that the “user agrees to
> > make a good faith effort to use the Software in a way that does not
> > cause damage, harm, or embarrassment to the United States/Commerce.”
> > This may be seen as a restriction on use (and therefore contrary to
> > DFSG§6)
>
> The term “use” is too vague, IMO, for help in discussing whether some
> action is restricted by copyright. You are right to point to DFSG§6,
> which distinguishes restrictions on “field of endeavour”.
>
> I think this case does in part depend on whether “[…] not cause damage,
> harm, or embarrassment to the United States/Commerce” excludes some
> field of endeavour. If it does, the restriction fails DFSG§6.
[…]

> > Do you think that this license is DFSG-compatible?
>
> I'd like to see discussion of fields of endeavour for a work like this,
> which may violate the restriction, and whether excluding those would
> count as a restriction on freedom of endeavour.

In a nutshell, this software is used to compute seasonal adjustments on
(mostly economic) time series data. For example, economic activity (as
measured by GDP) typically goes down during the summer in Western
countries, because of vacations; but this is a predictable pattern and
should not be counted as an economic slowdown. This software is used to
 distinguish this seasonal component from the underlying fundamental
trend.

So this software is used for statistical analysis and economic
research. I can hardly see any other use of it. The fields of endeavour
to which it can be applied are therefore quite limited, and it is hard
to see how this could be further restricted (short of making the
software useless, which is obviously not upstream’s intent).


Also, since this software cannot be used for, say, breaching into
computers or building weapons, it cannot do “damage, harm or
embarrassment” to the country or to the Department of Commerce as we
usually understand those words.

However, if “damage, harm or embarrassment” is taken in a broader sense
which includes political criticism, then things would be different. One
could write a hypothetical economic research paper, using this
software, and coming to the conclusion that some U.S. administration
has taken economic policy decisions that were “bad” (for some value of
“bad”). Using the software in such a way could obviously be perceived
as “damage, harm or embarrassment” by the criticized administration.

--
⢀⣴⠾⠻⢶⣦⠀  Sébastien Villemot
⣾⠁⢠⠒⠀⣿⡁  Debian Developer
⢿⡄⠘⠷⠚⠋⠀  http://sebastien.villemot.name
⠈⠳⣄⠀⠀⠀⠀  http://www.debian.org

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Re: DFSG-compatibility of X13-ARIMA-SEATS (U.S. federal govt. software)

Tobias Frost-3
On Fri, Aug 03, 2018 at 02:00:09PM +0200, Sébastien Villemot wrote:

> Le vendredi 03 août 2018 à 20:50 +1000, Ben Finney a écrit :
> > > Sébastien Villemot <[hidden email]> writes:
>
> > > However, the last clause of the licence says that the “user agrees to
> > > make a good faith effort to use the Software in a way that does not
> > > cause damage, harm, or embarrassment to the United States/Commerce.”
> > > This may be seen as a restriction on use (and therefore contrary to
> > > DFSG§6)
> >
> > The term “use” is too vague, IMO, for help in discussing whether some
> > action is restricted by copyright. You are right to point to DFSG§6,
> > which distinguishes restrictions on “field of endeavour”.
> >
> > I think this case does in part depend on whether “[…] not cause damage,
> > harm, or embarrassment to the United States/Commerce” excludes some
> > field of endeavour. If it does, the restriction fails DFSG§6.

That also reminds me a bit of the infamous "Used for God, not evil"
clause from the JSON license…

> […]
>
> > > Do you think that this license is DFSG-compatible?
> >
> > I'd like to see discussion of fields of endeavour for a work like this,
> > which may violate the restriction, and whether excluding those would
> > count as a restriction on freedom of endeavour.
>
> In a nutshell, this software is used to compute seasonal adjustments on
> (mostly economic) time series data. For example, economic activity (as
> measured by GDP) typically goes down during the summer in Western
> countries, because of vacations; but this is a predictable pattern and
> should not be counted as an economic slowdown. This software is used to
>  distinguish this seasonal component from the underlying fundamental
> trend.
>
> So this software is used for statistical analysis and economic
> research. I can hardly see any other use of it. The fields of endeavour
> to which it can be applied are therefore quite limited, and it is hard
> to see how this could be further restricted (short of making the
> software useless, which is obviously not upstream’s intent).

(Especially Open Source) Software can be exteneded or used in other
software to cover use cases never intended by the original authors.
IMHO this is one of the key points of FOSS, that you cannot really
predict on which ideas someone can come up to utilize a piece of
software (you might also want to use only parts of it, e.g.)

>
> Also, since this software cannot be used for, say, breaching into
> computers or building weapons, it cannot do “damage, harm or
> embarrassment” to the country or to the Department of Commerce as we
> usually understand those words.

E.g When I use the softwre to give another country an advantage, I would
indirectly damage the U.S.A and be in breach of the license.

>
> However, if “damage, harm or embarrassment” is taken in a broader sense
> which includes political criticism, then things would be different. One
> could write a hypothetical economic research paper, using this
> software, and coming to the conclusion that some U.S. administration
> has taken economic policy decisions that were “bad” (for some value of
> “bad”). Using the software in such a way could obviously be perceived
> as “damage, harm or embarrassment” by the criticized administration.


> --
> ⢀⣴⠾⠻⢶⣦⠀  Sébastien Villemot
> ⣾⠁⢠⠒⠀⣿⡁  Debian Developer
> ⢿⡄⠘⠷⠚⠋⠀  http://sebastien.villemot.name
> ⠈⠳⣄⠀⠀⠀⠀  http://www.debian.org