[License-discuss] Government licenses

Christopher Sean Morrison brlcad at mac.com
Tue Jun 4 15:51:07 UTC 2019

> On Jun 4, 2019, at 4:12 AM, Henrik Ingo <henrik.ingo at avoinelama.fi> wrote:
> On Mon, Jun 3, 2019 at 11:45 PM Christopher Sean Morrison via
> License-discuss <license-discuss at lists.opensource.org> wrote:
>>>> "The prohibition on copyright protection for United States Government works is not intended to have any effect on protection of these works abroad. Works of the governments of most other countries are copyrighted. There are no valid policy reasons for denying such protection to United States Government works in foreign countries, or for precluding the Government from making licenses for the use of its works abroad."
>>>> https://en.wikisource.org/wiki/Copyright_Law_Revision_(House_Report_No._94-1476)
>>> (Note that elsewhere in this thread it was already suggested that
>>> government projects could add a permissive license to software that
>>> may or may not be copyrighted at all. That is an easy practical
>>> solution to the question of releasing code. The question whether the
>>> code is copyrighted in the first place otoh is a significant, high
>>> stakes policy question.)
>> As noted in the preceding link, prevailing view and treatment is that there is full copyright protection in some jurisdictions.
> Clearly it is not *prevailing* in this community.

Prevailing view of the U.S. Government as dictated by the legislative branch of the federal government via House Report 94-1476 (see pg. 59):

https://www.copyright.gov/history/law/clrev_94-1476.pdf <https://www.copyright.gov/history/law/clrev_94-1476.pdf>

> Let's hope they don't come for the code that makes the clock tick on
> all Unix computers in all jurisdictions in the World:

This is simply not how the USG works, now or ever to my knowledge.  Once something is approved for release and made available to the public / published without stipulation, it is considered to be in the public domain in all jurisdictions.  That is why so much effort is put into restricting release beforehand when that’s not the desired result.

That is to say, while USG does assert it has copyright in international jurisdictions, it can and sometimes does waive those rights.  This is particularly common in cases where the USG no longer has an interest (e.g., GRASS GIS), decides to release into the public domain despite having an interest (e.g., tzdata, NIST codes, GSSHA, MODFLOW), or even in cases of spillage (accidental release) so long as it’s not subject to other regulation or law (e.g., ITAR, HIPAA, Classified, etc).

> The House Report you kindly advertised, seems to say that any single
> government employee is free to publish such code:
> [snip]
> ...after all, that's what public domain means. So apparently it only
> takes one government official with concern for the public good.

You overlooked the point that they’re only free to “as far as the copyright law is concerned”.  They are still subject to agency public release policies and many other laws and regulations that directly pertain to release authority.

DoD employees, for example, per regulation have no release authority unless they have signature authority.  This is typically a first-line supervisor (a "branch chief”) or up their chain of command.  If a Gov’t employee implements a particular type of software, their supervisor may not have release authority.  Their entire agency may not have release authority, with penalties of federal prison to everyone involved.  Department of Defense may have to request permission from the Department of Commerce, for example.

This is an excellent example of the difficulty and perpetuation of misunderstanding by people with no or limited working awareness of the USG, looking at it from an outside perspective without access and awareness to the plethora of regulations and machinations involved.  This is not a personal attack, but a symptom of a greater issue where the OSI community is trying to make determinations with respect to GOSS activity with what is often incomplete or wildly wrong information and incredibly arduous to cover all the potential situations without giving a misleading impression.  The result is an antagonistic tone (on both sides) and topic fatigue as topics are rehashed over and over again with whomever is next in line.


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