[License-discuss] Government licenses

John Cowan cowan at ccil.org
Wed May 29 01:34:57 UTC 2019

On Tue, May 28, 2019 at 5:33 PM Christopher Sean Morrison via
License-discuss <license-discuss at lists.opensource.org> wrote:

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

It's true that "public domain" is not *defined* in 17 U.S.C., but it is
*used* there seven times.  So turning to a dictionary, we find this in the
American Heritage Dictionary, 5th edition: "The condition of not being
protected by a patent or copyright and therefore being available to the
public for use without charge", and this in Merriam Webster Online: "[T]he
realm embracing property rights that belong to the community at large, are
unprotected by copyright or patent, and are subject to appropriation by
anyone[.]"  So the term is well-defined.

> 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.

No, it means that there is no copyright owner.  17 U.S.C.  §105 says:
"Copyright protection under this title is not available for any work of the
United States Government, but the United States Government is not precluded
from receiving and holding copyrights transferred to it by assignment,
bequest, or otherwise."  The term “work of the United States Government” is
defined as "[a] work prepared by an officer or employee of the United
States Government as part of that person’s official duties"

> While works of Gov’t employees typically don't have copyright protection
> under Title 17 and could easily be released "into the public domain”,

They *are* in the public domain (unless they were not part of the author's
official duties).

> that doesn’t mean they have to release it, can release it,

If by "release" you mean "publish", you are of course right.   But if by
"release" you mean "place in the public domain", you are wrong, as shown

or that there aren’t other mechanisms for releasing it NOT “into the public
> domain.”

There are no such mechanisms.  A copyrighted work can have its copyright
transferred, but a work that is not in copyright (whether because the
copyright has been expired or forfeited, or was expressly waived by the
owner, or never existed in the first place) cannot be removed from the
public domain except by Act of Congress.  This has happened several times
in the past, notably 1893 (restoring copyright forfeited for lack of
certain formalities if reregistered), 1919, 1941 (for the benefit of
foreign authors whose copyrights expired during the war, when they could
not renew them), 1976 (extension to life+50), and 1989 (extension to
life+70), plus a number of private bills in the 19C for the benefit of
specific authors.

Gov’t regularly distributes software that otherwise has *no* Title 17
> protections to foreign and domestic recipients, under contractual terms.

So they may, but if the recipients transfer the software to third parties,
the recipients are in breach but the third parties are not, for lack of
privity and because there is no in rem right in the nature of copyright.
Much the same is true of classified materials (as opposed to the U.K. where
receiving and further disseminating such materials is separately
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