[License-discuss] NOSA 2.0, Copyfraud and the US Government

[Christopher Sean Morrison]

>> Hi all, as you know I've been pushing the position that the US Government may 
>> have problems using copyright-based licenses on works that do not have 
>> copyright attached.  One of the lawyers I've been working on this with has 
> 
> How is their position if the works are in the Public Domain only
> in the USA? Their own copyright FAQ says that even US government
> work may be copyright-protected e.g. in Germany.

That’s why the language is specifically “works that do not have copyright attached”.  Just because there’s no copyright protection does not mean the USG can’t sell/share/trade to some other country (think US selling a tank to Germany) under some agreement/contract/convention/treaty.  What the copyright act makes clear is that there simply is no default copyright protection, but it doesn’t preclude holding copyright or restricting rights through other means.  The interesting question (to me) is what happens when an agency uses contract law to restrict a right the copyright act specifically covers.  For example, attribution.  To date, the answer has been “nothing".

The FAQ does imply that some license is needed because of the international context.  To limit license proliferation, it would be desirable to leverage what’s already in place.  This is what the code.gov <http://code.gov/> guys are trying with a simple INTENT declaration.  Previously, the main players were (and are still) relying on contract law (e.g., NASA) or acquiring copyright through assignment.

> So, in the end, “we” need a copyright licence “period”.

Government Services Administration folks have started testing the theory, but not all departments agree.  Without case precedence, it has kept unanswered questions of fraud and license validity (and implications therein like severability) from the folks in the “you need a contract” camp.

Cheers!
Sean

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