[License-discuss] Government licenses

Tue Jun 4 09:52:54 UTC 2019

On Tue, Jun 4, 2019, 04:13 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.
>

Ignorance of the law is not a statutory interpretation. Without §105, USG
works would be imbued with copyright. §105 prohibits this while carving
exceptions. The black letter law and legislative history say as much.

> > > 1. US Copyright Act § 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 important part relevant to this discussion being “under this
> title”.  It’s not exclusive of rights inferred or reserved outside
> Copyright Act.  HR 94-1476 further clarified a legislative position that
> the exclusion does *not* apply internationally (which ropes in Berne
> Convention reciprocation).  It directly speaks to § 105.
> >
> > > 3. An easy mistake to make here is to think that since government
> > > lawyers say this, it is the correct interpretation of the law. This is
> > > of course not so. The government lawyers have merely presented a
> > > theory that is beneficial to their employer, much like an Oracle or
> > > Microsoft lawyer would.
> >
> > HR 94-1476 clarified this interpretation, not ad hoc lawyers.  The two
> last paragraphs are relevant with the 4th specifically addressing
> international copyright and 5th clarifying public domain intent.
>
>
> You will have to point to it more explicitly. I don't find anything
> like that in
> https://en.wikisource.org/wiki/Copyright_Law_Revision_(House_Report_No._94-1476)
>
> On the other hand...
>

Section 105. Here's the relevant excerpt:

    "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."

"There are no valid policy reasons" hasn't aged well.

> > And it is especially worth noting that actually testing this theory in
> > > a court decision is probably not what the US government wants to do.
> > > It is not at all obvious their theory will win in a foreign court. A
> > > much wiser strategy is to just keep asserting this theory, until
> > > people agree and act accordingly.*
> >
> > I’ve heard from several Gov’t lawyers that this has been successful in
> court repeatedly.
> >
>
> 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:
>
> "The tzdata and tzcode have historically been public domain works owing
> to their being maintained by a US Government employee. A primary
> objective is to continue to make the tzdata and tzcode available under
> similarly relaxed terms to TZ Users. To this end the TZ project must
> obtain an equivalent grant or waiver of rights from its Contributors."
>
> https://tz.iana.narkive.com/AJixjglo/future-time-zone-home
>
> > > 4. On the other side the open source community continues to act as if
> > > government software is truly public domain. It can be used in other
> > > open source projects. Sometimes unreleased government code has been
> > > liberated with tricks such as using the Freedom of Information Act.
> >
> > Many agencies do so for public relations, not because it’s required.
> Many agencies hold a view that software is not a record (thus immune to
> FOIA).
> >
>
> The House Report you kindly advertised, seems to say that any single
> government employee is free to publish such code:
>
> "The effect of section 105 is intended to place all works of the
> United States Government, published or unpublished, in the public
> domain. This means that the individual Government official or employee
> who wrote the work could not secure copyright in it or restrain its
> dissemination by the Government or anyone else, but it also means
> that, as far as the copyright law is concerned, the Government could
> not restrain the employee or official from disseminating the work if
> he or she chooses to do so. The use of the term “work of the United
> States Government” does not mean that a work falling within the
> definition of that term is the property of the U.S. Government. "
>
> ...after all, that's what public domain means. So apparently it only
> takes one government official with concern for the public good.

You'd be mistaken in your conclusion because jurisdiction matters. While
someone could distribute USG works within the United States, they could not
do so outside. The statutory language very clearly divides domestic and
foreign copyright with the language "under this title."

Generally speaking public domain in one place does not mean public domain
everywhere. For example, there's a dispute involving Project Gutenberg and
a collection of German language works. The works are PD in the US and not
Germany. While I the notion that Project Gutenberg falls under German
jurisdiction to be comical, this doesn't do anything to relieve their
headache.

https://cand.pglaf.org/germany

Brendan
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