[License-discuss] Government licenses

Christopher Sean Morrison brlcad at mac.com
Tue May 28 21:32:47 UTC 2019

> >>As he described it, goverment-written code is all public domain. Unfortunately, the predominant effect of that public domain status for the code was that government contractors would take the code, make trivial modifications, and sell it back to >>the government under a proprietary license - which they were within their rights to do.
> But if it’s public domain, the government has no right to dictate how those modifications are subsequently licensed.  That’s sort of the whole point of public domain.

This feels like trolling…

> It's far more confusing than that. Works by the United States government are in the public domain only in the United States. 

Yes!  Even to say it’s in the public domain is misleading.  It’s not a USC term.

Saying something from the Gov’t is “public domain” typically just means it went through a public release process and there's no intention to assert rights.  While works of Gov’t employees typically don't have copyright protection under Title 17 and could easily be released "into the public domain”,  that doesn’t mean they have to release it, can release it, or that there aren’t other mechanisms for releasing it NOT “into the public domain.”  Moreover, the common case is even messier as most codes are a mixture of Gov’t and contractors where the rights management involves FARS and/or DFARS regulation, and potentially complex contract clauses.

Gov’t regularly distributes software that otherwise has *no* Title 17 protections to foreign and domestic recipients, under contractual terms.  I’m told these have held up in court, though I admit to not having a citation handy.  They more commonly just simply never publicly release the software.  It can take significant effort to take source code through what is typically a formal public release process, and those typically amount to tossing code over a fence.  They certainly don’t have to release, have a culture that fears information release, and lots of stuff is immune to FOIA requests anyways.


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