NASA Procedures and Guidelines
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NPR 2210.1C Eff. Date: August 11, 2010 Cancellation Date:	Release of NASA Software - Revalidated w/change 1
| TOC | ChangeHistory | Preface | Chapter1 | Chapter2 | Chapter3 | AppendixA | AppendixB | AppendixC | ALL |

Chapter 3. Release Options and Restrictions

3.1 General Considerations

3.1.1 The release categories constitute a hierarchy from least to most restrictive. Once a particular release category has been approved, software may be released under that category or under any of the more restrictive release categories defined in section 3.2.

3.1.2 Generally, after consultation with the Center Patent or IP Counsel, software shall be categorized as Releasable Without Nondisclosure Obligations, Releasable With Nondisclosure Obligations, Releasable Only for U.S. Government Purposes, or Not Releasable as described in paragraph 2.4.4.

3.1.3 The Center SRA is authorized to release software with more restrictive conditions than recommended by Center Patent or IP Counsel and the CEA, provided that the SRA works with the Center Patent or IP Counsel to prepare the appropriate SUA. However, in no event will the Center SRA release software with less restrictive conditions than recommended by Center Patent or IP Counsel in paragraphs 2.4.4.1 through 2.4.4.4, by the CEA in section 2.6, or by the Center CISO in section 2.7.

3.1.4 In keeping with the NASA Technology Transfer perspective in NPR 7500.2, NASA Technology Transfer Requirements" which encourages and enables the widest possible utilization of NASA technological assets by public and private sectors of the United States to benefit the national economy and the U.S. Public, US General Release is the default release type for NASA developed software unless otherwise restricted by the requirements of this NPR.

3.1.5 Given that NASA is on the forefront of development and enhancement of systems to support human capital programs and processes and that NASA proactively shares such systems with the Federal community in support of the e-Government Act of 2002 (PL 107-347, Chapter 36 of Title 44 U.S.C.) and the Office of Management and Budget Human Resources Line of Business Initiative of 2008, NASA human capital software applications will generally be assigned release restrictions of Approved for Public Release,Approved for Open Source Release,or Approved for U.S. Government Purpose Release.

3.2 Release Categories

3.2.1 Approved for Public Release

3.2.1.1 The release category is the broadest release category possible and may be approved only if Software Accepted (As-Built) Baseline has been categorized as Publicly Releasable Software.

Specific Release Requirements. In addition to the requirements associated with the categories identified in paragraphs 2.4.4.1 -- 2.4.4.2, the following specific requirements and restrictions for release of software apply to the release options defined in paragraph A.2.

3.2.1.2 This release category indicates there are no export, nondisclosure, or other restrictions on the software and requires concurrence by the CEA and Center Patent or IP Counsel.

3.2.1.3 Once software has been approved for Public Release, all other release types may be allowed as appropriate.

3.2.1.4 Software Approved for Public Release does not require a Technology Transfer Control Plan per section 3.5 of NPR 2190.1. Additionally, it is recognized that foreign entities may have access to Software Approved for Public Release. This is consistent with and is not prohibited by NPD 2110.1, Foreign Access to NASA Technology Transfer Materials (since further software development by the foreign recipient may be applied to NASA missions).

3.2.1.5 Under this release category, further transfer of the software by the recipient without the prior written approval of NASA may be authorized.

3.2.1.6 All releases under this category, other than via a click-wrap agreement, require an SUA be issued in accordance with paragraph A.1.18.

3.2.1.7 NASA protects and controls the use of its name, seal, insignia, and initials (see 14 CFR Part 1221). Therefore, NASA software that is categorized as Approved for Public Release shall not include the name or initials of "NASA" in the software name or acronym.

3.2.1.8 Public, or External mobile applications for distribution to the general public will have an Approved for Public Release determination.

3.2.2 Approved for Open Source Release

3.2.2.1 Open Source Software, a subcategory of Publicly Releaseable Software, developed by or for NASA shall be released under the NASA Open Source Agreement (NOSA) unless external Open Source Software incorporated into the NASA Open Source Software requires use of a different open source license or unless approved by Center Patent or IP Counsel.

a. Open Source Software will not be released using a different open source license, unless Center Patent or IP Counsel reviews the license to assess risks associated with its use and approves its use.

b. If a proposed release of Open Source Software includes the release of external Open Source Software, care will be taken to ensure that the pertinent license for such external Open Source Software is acceptable. For example, at least one widely used external open source license does not currently include an indemnification provision and further requires that all software distributed with that external Open Source Software be distributed under the same license terms.

3.2.2.2 When software categorized as Approved for Open Source Release is released as Open Source Software, the software recipient is provided with a copy of, or access to, the NOSA or other open source license and the recipient's acceptance of the NOSA or other open source license is effective upon download or use of the software. Thus, a signed SUA (e.g., a signed copy of the NOSA) is not required for this type of release.

3.2.2.3 NASA protects and controls the use of its name, seal, insignia, and initials (see 14 CFR Part 1221). Therefore, NASA software that is categorized as Approved for Open Source Release shall not include the name or initials of "NASA" in the software name or acronym.

3.2.3 Approved for U.S. and Foreign Release

3.2.3.1 Approved for U.S. and Foreign Release is essentially a U.S. Release where release can also be made to foreign persons.

3.2.3.2 Due to Agency policy reflected in NPD 2110.1, this category will be approved only for "Software Accepted (As-Built) Baseline" that may have special considerations, such as public health and safety benefits, or where special circumstances accrue economic benefit to the U.S.

3.2.3.3 Normally, further transfer of the software by the recipient without the prior written approval of NASA is not allowed under this release category.

3.2.3.4 This release category will be approved with great care and requires concurrence by the CEA.

3.2.3.5 All releases under this category require an SUA.

3.2.3.6 Nondisclosure and export control provisions will be included as directed by the Center Patent or IP Counsel and CEA, respectively.

3.2.4 Approved for U.S. Release Only

3.2.4.1 Normally, further transfer of software by the recipient without the prior written approval of NASA is not allowed under this release category.

3.2.4.2 All releases under this category require an SUA.

3.2.4.3 Nondisclosure and export control provisions will be included as directed by the Center Patent or IP Counsel and CEA, respectively. This release category does not remove Export Control Program restrictions.

3.2.4.4 Release may be made by the Center directly or by the Center via a designated NASA agent for software transfer and distribution (i.e., NASA contractor, grantee, or Space Act Agreement partner). A U.S. Release via a designated agent shall be subject to this NPR. Restrictions on the use and distribution of software via a designated agent may be established by NASA.

3.2.5 Approved for U.S. Government Purpose Release.

3.2.5.1 Except for (1) a civil servant-to-civil servant exchange of software within NASA or (2) software released as Government Furnished Information (GFI) or Government Furnished Software (GFS) under a NASA contract or grant, an SUA is required for all subcategories under the Approved for U.S. Government Purpose Release.

a. Once a release of a particular software to a NASA project other than the project that has responsibility for that software has been approved and released via an SUA, that software may be further released civil servant-to-civil servant within that project without further review.

b. Nondisclosure and export control provisions will be included in SUAs as directed by the Center Patent or IP Counsel and CEA, respectively.

c. Permission to redistribute NASA software to contractors and/or subcontractors for use under a Government contract may be included in the SUA.

3.2.5.2 Approved for Beta Release. A Beta Release is only appropriate for the purpose of obtaining test and evaluation comments and feedback on the operation of a computer program from beta release recipients.

a. A Beta Release to a foreign organization, will be authorized by the SRA only after consultation with and concurrence by the CEA.

3.2.5.3 Approved for Project Release. The Center SRA shall authorize a Project Release only through written contract, SUA, or other agreement deemed to be a Government purpose.

a. A Project Release is appropriate in the following situations:

(1) For use under U.S. Government contracts or grants;

(2) In the United States for use under a Space Act agreement, cooperative project, exchange program, or other agreement between the U.S. Government and another organization;

(3) For use by a foreign organization if determined by NASA to be required to implement an international cooperative project established by NASA in an international agreement with the foreign cooperating or sponsoring agency.

b. Nondisclosure and export control provisions should be included as directed by the Center Patent or IP Counsel and CEA, respectively. At a minimum, NASA will obtain Government purpose license rights to any software enhancements or derivative works made by the software recipient. Approved for Project Release includes the following categories of release:

c. Project Release for use under NASA contracts or grants. The release will specifically limit the use of the software to the contractor and specifically identified subcontractors. Upon approval by the Center SRA, the release may be implemented by the responsible technical project monitor and may be made before the Technology Transfer Assessment is completed.

(1) If released as GFI under a contract or grant, use of the software will be limited to accomplishing work under that contract or grant.

(2) If released under a separate SUA, use of the software will be limited to accomplishing work under the contract(s) or grant(s) listed in the SUA.

d. Project Release in the United States for use under a Space Act Agreement, cooperative project, exchange program, or other agreement between NASA and another organization. The release will be specifically limited to the use of the software by the stated recipient, solely to accomplish the work described in the agreement, or if further distribution is approved, delineated in any NASA-approved distribution of the released software.

e. Project Release for use by a foreign organization to implement an international cooperative project established by NASA in a project agreement with the foreign cooperating or sponsoring agency. The release will be specifically limited to use of the software by the stated recipient and should prohibit any further distribution.

(1) Any such release will be in accordance with the international agreement and the NASA Export Control Program.

3.2.5.4 Approved for Developmental Release. This category is generally a type of Project Release for use under a NASA contract where Software Product Baseline is released specifically for further development on behalf of the Government, but not including operational use.

3.2.5.5 Approved for Interagency Release. This type of release is for use by another U.S. Government agency and will include any use restriction (e.g., for governmental purposes only or for internal Government use only) associated with the software. If the receiving Agency is authorized to further release the software, provisions to flow down disclaimer and indemnification provisions to the further recipients are required.

3.2.5.6 Approved for NASA Release. The transfer of software between NASA Centers is critical to Agency programs which often involve multiple Center organizations. Unless other restrictions apply, intra-NASA releases are to be encouraged and facilitated by the Center SRA's. This type of release is between NASA Centers. The SUA for this type of a release is a simple acknowledgement of receipt of the software that identifies any restriction on NASA's right to use the software. The acknowledgement, which may be done via click-wrap acceptance, will include any use restriction (e.g., for governmental purposes only or for NASA internal use only) associated with the software but does not require disclaimer or indemnification provisions.

If the receiving Center plans on releasing it to a Center contractor, the receiving Center shall use a Project Release under paragraph 3.2.5.3.c.

3.2.6 The Center SRA shall not authorize an Unrestricted Release (as defined in paragraph A.2.7).

3.3 Patent and Copyright Licensing

Patent and copyright licensing to external entities is not considered a release under this NPR. Patent and copyright licensing is implemented under NPD 2090.6. However, in general, before software is approved for licensing, it normally goes through the same review and assessment process as described in Chapter 2 herein.

3.4 Disclaimer and Indemnification

3.4.1 All software released by NASA, except for an Approved for NASA Release, will contain appropriate disclaimer and indemnification provisions stating that the software is provided "as is" without any warranty, expressed or implied and that the recipient waives any claims against, and indemnifies and holds harmless, the Government and its contractors and subcontractors.

3.4.1.1 The disclaimer and indemnification provisions should be included in the SUA and, where practicable, will be displayed on software startup and/or, for software delivered in tangible form, be attached as a label to the software medium released.

3.4.1.2 Use of any exceptions to the disclaimer and indemnification clauses will be approved by the Center Office of Chief Counsel or Center Patent or IP Counsel as appropriate. With the approval of counsel, reference to indemnification may be removed when: (1) a Recipient is a state government entity (e.g., a state college/university) or U.S. Government entity prohibited by state or Federallaw from agreeing to indemnify; (2) NASA software is distributed with, or as part of, external Open Source Software obtained by NASA under a license that does not include indemnification provisions and that requires all software distributed with that external Open Source Software to be distributed under the same license terms; or (3) in the case of a Project Release under a Government contract, the software is provided as Government Furnished Information (GFI) under the contract or as otherwise approved by Center Office of Chief Counsel or Center Patent or IP Counsel.

3.4.1.3 Sample disclaimer and indemnification provisions are provided as follows:

a. The NASA software and/or technical data are provided "AS IS" without any warranty of any kind, either expressed, implied, or statutory, including, but not limited to, any warranty that the NASA software and/or technical data will conform to specifications, any implied warranties of merchantability, fitness for a particular purpose, or freedom from infringement, any warranty that the NASA software and/or technical data will be error free, or any warranty that technical data, if provided, will conform to the NASA software. In no event will the United States Government, or its contractors or subcontractors, be liable for any damages, including, but not limited to, direct, indirect, special, or consequential damages, arising out of, resulting from, or in any way connected with the NASA software and/or technical data, whether or not based upon warranty, contract, tort, or otherwise; whether or not injury was sustained by persons or property or otherwise; and whether or not loss was sustained from, or arose out of the results of, or use of, the NASA software and/or technical data. The United States Government disclaims all warranties and liabilities regarding third party computer software, data, or documentation, if present in the NASA software and/or technical data, and distributes it "AS IS."

b. Recipient agrees to waive any and all claims against the U.S. Government and its contractors and subcontractors, and will indemnify and hold harmless the United States Government and its contractors and subcontractors for any liabilities, demands, damages, expenses, or losses that may arise from recipient's use of the NASA software and/or technical data, including any damages from products based on, or resulting from, the use thereof.

c. If recipient further releases or distributes the NASA software and/or technical data, recipient agrees to obtain this identical waiver of claims, indemnification, and hold harmless agreement with any entities that are provided with the NASA software and/or technical data.

d. Notwithstanding the above, when recipient is prohibited by law from providing indemnification, the indemnification requirements specified above should not apply to recipient.

3.5 Notices

3.5.1 Copyright and restrictive notices,will be included in the SUA.

3.5.1.1 Where practicable, copyright and restrictive notices will be embedded in the software, displayed on software startup, and/or be attached as a label to the software medium released.

3.5.1.2 Copyright Notice. Software released by NASA will normally include a copyright notice.

a. For purposes of the year of first publication used in the copyright notices below, publication means the first distribution of software to an entity external to NASA as a Public Release or Open Source Release. If software has only been released under one of the more restrictive release categories that do not allow further release, it is not considered to be published and only an unpublished work copyright notice will be used. If a particular software version includes all or parts of earlier versions that have been released at different times, the year of first publication may include multiple years or a range of years that correspond to the various releases (e.g., Copyright 2010 or 2012-2014).

b. The SRA shall consult with the Center Patent or IP Counsel to determine if a copyright notice is required and, if so, the proper copyright notice to include in the software or SUA.

c. The following are example copyright notices.

(1) For unpublished software that is a work of the U.S. Government, i.e., software coded entirely by U.S. Government employees as part of their employment, use:

Unpublished Work Copyright [year software version completed] United States Government as represented by the Administrator of the National Aeronautics and Space Administration. No copyright is claimed in the United States under Title 17, U.S. Code. All Other Rights Reserved

(2) For published software that is a work of the U.S. Government, use:

Copyright [year of first publication] United States Government as represented by the Administrator of the National Aeronautics and Space Administration. No copyright is claimed in the United States under Title 17, U.S. Code. All Other Rights Reserved.

(3) For unpublished software created in whole or in part by a non-Federal entity and assigned to the U.S. Government, use:

Unpublished Work Copyright [year software version completed] United States Government as represented by the Administrator of the National Aeronautics and Space Administration. All Rights Reserved.

(4) For published software created in whole or in part by a non-Federal entity and assigned to the U.S. Government, use:

Copyright [year of first publication] United States Government as represented by the Administrator of the National Aeronautics and Space Administration. All Rights Reserved.

d. In the event NASA has been granted the right to release software owned by third parties (e.g., through written permission or license from the software owner), any third party copyright notices on such software will be included in the SUA or in a readme file within the software (e.g., as is the practice in Open Source Releases).

3.5.1.3 Restrictive Notice.

a. The following general restrictive notice should be included in the SUA for all releases except for an Approved for NASA Release:

This software may be used, reproduced, and provided to others only as permitted under the terms of the contract or other agreement under which it was acquired from the U.S. Government. Neither title to nor ownership of the software is hereby transferred. This Notice shall remain on all copies of the software.

b. Any specific use and disclosure restrictions will also be specified in the SUA.

3.6 Software Release Records and Metrics Reporting

3.6.1 Software Release Records. The Center SRA shall establish and maintain Software Release Records. The unrestricted release of NASA software (i.e., without an appropriate SUA or release record) is prohibited. An unidentified release of NASA software does not provide NASA with the ability to measure the interest generated by the software or track the user of a particular version of the software.

3.6.1.1 Software and Software Release Records will be safeguarded, retained, and disposed of per guidance provided in NPR 1441.1.

3.6.2 If the release is solely by electronic means, an Internet Protocol Address, by itself, is insufficient for identification purposes. In an effort to track usage and maintain accurate records, each recipient should be requested to register with a NASA point of contact for all transfers of Public Release or Open Source software for which no Software Release Record was required (e.g., release by click wrap agreement). The Center official designated by the Center Director, or his/her designee(s), is the point of contact for the purposes of establishing this registration regarding software release at that Center.

3.6.3 The performance measures or metrics, as established by NPD 7120.4, will be reported semiannually (due 2 weeks following the end of 2nd and 4th fiscal year quarters) by the Center SRA to the Chief Technologist at NASA Headquarters.

3.6.3.1 To the extent feasible, NTTS shall be used to record and maintain metrics data.

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