[License-discuss] Government licenses

Christopher Sean Morrison brlcad at mac.com
Wed May 29 03:26:41 UTC 2019

> 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.

I should clarify that I was referring to how public domain is used colloquially.  Not asserting right or wrong, just that "public domain” isn’t typically considered a status until after it is published.   Most codes are treated as proprietary or even fouo prior to public release.

> No, it means that there is no copyright owner.  17 U.S.C.  §105 says: "Copyright protection under this title [emphasis CSM] 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”

Just because there isn’t copyright protection (or a "copyright owner" as you framed it) under Title 17 does not mean there are not protections available.  That’s not my assertion, but the opinion I’ve heard expressed from numerous Gov’t lawyers.  Even though some code may not have copyright protection under Title 17, their agency's opinion was that they still have rights that may be protected under contract law and / or agreement mechanisms (e.g., CRADAs are commonplace).

> 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).

To whom?  US Citizens?  Permanent residents?  Temporary status residents?  Foreigners?  Enemies?  Anyone?

I digress, irrelevant...  Say I identified a list Gov’t source code developed entirely by Gov’t employees as part of their official duties, even provide some citizen with the name of the agency and relevant contact information, they will be unsuccessful obtaining said software despite it having no copyright protection.  Public domain is practically meaningless until the Gov’t agrees (or is compelled) to publish.

> 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.

I’m not seeing how that’s relevant, but don’t disagree either.  I do believe contract law aims to respond accordingly too (e.g., vs a copyright violation).  The point is that it’s a release mechanism (in prevalent demonstrable use) that does not rely on copyright.  If it were breached, it very well may be the case that a court would find no damage for software without Title 17 protections, but I was told that at least the mechanism itself (agreements of Gov’t works) has been litigated successfully repeatedly.

>   Much the same is true of classified materials (as opposed to the U.K. where receiving and further disseminating such materials is separately criminalized.

We may get to see this constitutionally tested [1]… 


[1] https://www.nbcnews.com/think/opinion/trump-administration-s-assange-indictment-referendum-constitution-ncna1010181

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