Public Domain and liability

[Rod Dixon, J.D., LL.M.]

You do raise an interesting question. The answered may involve a fair use
analysis but, I would be very careful about how I use a work accessed as a
result of the works' "public record" or FOIA status. I doubt that all of the
documents you may obtain in a carefully constructed FOIA request could be
further redistributed without the pertinent permissions.  One consideration
is that a FOIA request may lead to documents in government records that were
not created by the government.  While a work provided under a FOIA request
and a public domain work created by a government employee (let's say Federal
worker to keep the example simple) may seem like a similar classification,
in fact, they are quite different. A FOIA request could quite easily result
in access to a work that is copyright protected depending on what is in the
file that is the object of the request.


Rod Dixon
Visiting Assistant Professor of Law
Rutgers University Law School - Camden
www.cyberspaces.org
rod at cyberspaces.org


> -----Original Message-----
> From: Seth David Schoen [mailto:schoen at zork.net]On Behalf Of Seth David
> Schoen
> Sent: Monday, August 14, 2000 8:40 PM
> To: License Discuss
> Subject: Re: Public Domain and liability
>
>
> Rod Dixon, J.D., LL.M. writes:
>
> > I think it may be a very good idea. In fact, some states are
> developing free
> > software...especially state-run universities. It's fairly
> well-known that
> > the contributions of the Univeristy of Illinois and UC-Berkeley are
> > significant in regards to  Internet software.
> >
> > States, of course, will not give away all (or even most) of their
> > intellectual property, but I think some have made significant
> contributions
> > as a result of the software development projects at universities, which
> > often are sponsored by Federal grants.
>
> There's some interesting argument going on these days, too, because
> under some state public records laws, software developed by a state
> (not necessarily by a contractor or vendor) will be a public record,
> so that anybody may request a copy.  (Some contractors are kind of
> scared about that, too.  Remember that the ACLU recently made a very
> high-profile Federal FOIA request for the source code of the FBI's
> extremely secret Carnivore software.  There are some law enforcement
> exceptions in the FOIA, so the FBI might not have to comply, but in
> general, it seems both Federal and state agencies would have to turn
> over most source code to most of their software, on request.)
>
> It's pretty clear that states can hold patents, but public records
> laws might severely limit their ability to use copyrights to control
> use of their original works.
>
> I once made a joke about requesting copies of all the work of a friend
> who works for a state government, but it's actually quite possible, in
> general.  So what happens if someone tries to redistribute works of
> authorship which are matters of public record?  How about derivation
> and sublicensing?
>
> --
> Seth David Schoen <schoen at loyalty.org>  | And do not say, I will
> study when I
> Temp.  http://www.loyalty.org/~schoen/  | have leisure; for
> perhaps you will
> down:  http://www.loyalty.org/   (CAF)  | not have leisure.  --
> Pirke Avot 2:5
>