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2015 comment submitted to US Department of Education

by Joshua Gay Contributions Published on Dec 18, 2015 02:37 PM
Comments submitted on December 18, 2015 by Joshua Gay & Donald Robertson, III of the Free Software Foundation to the U.S. Department of Education in the matter of Open Licensing Requirement for Direct Grant Programs (80 FR 67672).


On November 3rd, 2015 the Department of Education released a Notice of Proposed Rule Making (NPRM), Open Licensing Requirement for Direct Grant Programs (80 FR 67672), that proposes to amend the regulations regarding the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards in order to require that all Department grantees awarded direct competitive grant funds to license to the public all copyrightable works created with Department grant-funds under terms that permit use, modification, and redistribution (with or without modifications) of the works. The Free Software Foundation submits these comments in response to the NPRM.

About the Free Software Foundation

The Free Software Foundation (FSF) is a charitable 501(c)3 corporation, founded in 1985, with the mission to promote computer user freedom and to defend the rights of all free software users. The FSF is the largest single contributor to the GNU operating system (used widely today in its GNU/Linux variant) and the FSF's GNU General Public License (GPL) is the most widely used free software license, covering major components of the GNU operating system and tens of thousands of other computer programs used on hundreds of millions of computers around the world. The FSF has inspired and significantly influenced numerous other initiatives focused on creating free licenses and free works, including Creative Commons and Wikipedia.

The FSF's Licensing & Compliance Lab is the pre-eminent resource of free licensing information for developers and publishers of free software and free documentation. The Licensing and Compliance Lab provides numerous resources and public services including: no cost licensing consulting for developers of free works; continuing legal education workshops for the legal community; and myriad educational publications on choosing and making use of free licenses.

Proposed rules

The Free Software Foundation applauds the efforts of the Department to ensure that educational resources and software created with its direct competitive grant funds must be released under free licenses, which grant teachers, students, and the public at large the legal permission to copy, distribute, modify, and distribute modified versions of the works.

However, we are concerned that the proposed rule §3474.20 (a), as it is currently written, might be misconstrued to imply that a grantee can choose a license that restricts the distribution of modified versions of the work. Specifically, the proposed rule states that the license must grant the public permission to "access, reproduce, publicly perform, publicly display, adapt, distribute, and otherwise use, for any purposes." Missing from this list is the permission to "distribute modified versions" or equivalently "distribute adapted versions."

In the NPRM, the Department asserts that the proposed rule changes would "accelerate innovation and improve quality in education by enabling others to test and build upon Department-funded work, and by stimulating a market of derivative works." Clearly a market of derivative works could not exist if the licenses did not permit distribution of modified versions of the works. As such, it seems clear that the Department's intent is to require licenses that permit distribution of modified versions of the work. The FSF agrees with the Department that individuals should have the freedom to cooperate and share modified versions of educational materials and software, but we would add that such cooperation should not be forbidden regardless of whether or not it is shown to foster a marketplace of innovation. Removing errors and mistakes in educational materials, updating them with new information, and removing bugs from software are just some of the many important and practical examples to show why individuals should have the freedom to share modifications to educational materials and software. When educational works and software forbid making and sharing derivative works containing fixes and small changes, it means that people need to create new materials from scratch, which is far too great of a burden for our education system to bear.

The Department may believe that the current language of the rules already requires licenses that permit redistribution of modified versions. If this is the case, then making this small change will do no harm, but it will serve to clarify the intent of this rule. Such clarification is especially useful in this situation because it will make it clear that people cannot choose "open access" licenses that include "No Derivative"-type requirements, while at the same time, the rules will still permit use of widely adopted free licenses such as the Creative Commons Attribution (CC BY) license, the Creative Commons Attribution-ShareAlike (CC BY-SA) license, the GNU General Public License, the GNU Free Documentation License (with no invariant or cover text requirements), or any of the licenses the FSF has verified to be free at

By adjusting the language of the regulation to make clear that distribution of modified versions must be permitted, the Department can realize its goal. We, the Free Software Foundation, along with the co-signatories listed below, humbly submit to you the above recommendations for your consideration.


Joshua Gay & Donald Robertson, III Free Software Foundation


The following individuals have co-sign the Free Software Foundation's comment.

Michael T. Gerwitz
Williamsville, NY, 14221

Christopher Waid
Flemington, New Jersey

Gary Wong
Salt Lake City, UT

Joshua N. Pritikin Charlottesville, VA 22902

Dave Loyall
Bellevue, Nebraska

Luben Dimov
Huntsville, AL

Andrew Hills
Somerville, MA

Michael J. O'Donnell
Glencoe, IL

Charles E. Lehner
Orient, New York

David Mascharka
Des Moines, Iowa

Susan M. Lehrer
Seattle, Washington

Gregory Scott Rundlett
Salisbury, MA 01952

Arthur Torrey
North Billerica, MA 01862

Siddharth Ravikumar
Bowling Green, Ohio

Hykeem R. Wells
Philadelphia, Pennsylvania

Kurt Brenneman
North Providence, RI 02911

Howard J. Bampton
Columbia, MD

Johann von Preussen
Long Beach, CA

William Flashner
Old Greenwich, CT Dr.

Rod Murufas
Yorba Linda, CA 92886

Wex Lee, Ph.D.
Dean Boyce Shipman North, Carolina

Garret Wassermann
Pittsburgh, PA

Joshua Mudge
Sandy, Utah 84094

Miguel Pastor García
Castellón de la Plana, SPAIN

Teofilo R. Timkang Jr.
Cabadbaran City, Philippines

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