You will need to change the law if I am correct

[tinjaw]

I am a government employee. I write software. Everything I write is PUBLIC DOMAIN. I tried many many times to use a license (any license) and was told by the Army lawyers that by law it is PUBLIC DOMAIN and can not be put under any license. One example was during the APPS for ARMY contest. I was told that I had no choice. I could not license it in any way.

How is this proposal different? Is anybody reading this a lawyer? If so, can you provide us the documents that support what I have been told?

[tomberek]

@tinjaw The law has not changed, your work is still Public Domain from a copyright perspective. That is why this agreement exists, it uses a contract law, rather than copyright law, to establish a situation which would normally be handled by using an existing open source license.

@shawoods : you may have some comments.

[marctjones]

What is the legal theory behind the enforcement of this agreement since you acknowledge that the code remains in the public domain? Can't I simple avoid this agreement by simple refusing to consent to the agreement and taking the code as a public domain work? I note that you do mention consideration which is indeed a prerequisite for forming a contract in American law. But you seem to be overlooking consent. Can you simply impose an obligation to consent even if the user is unaware of the agreement. That does not seem like consent at all. Isn't this then very close to the legal theory behind browse-wrap agreements, which have limitations on their enforceability.

I acknowledge that you see in many FOSS licenses that the license says it presumes people take the code under the license, but that only works because individuals have to choose between accepting the license or violating the author's copyright. The copyright holder gives others the choice between being liable for copyright infringement or agreeing to comply with the license. But here no such choice exists. You asking users to choose to accept a contract to use the public domain software, or simply use the software as a public domain work without accepting the contract. Why would anyone simply not choose the later in every case?

Since the work is in the public domain doesn't even the contract theory fail because there is no consideration offered on the government's behalf? Offering up the right to use a work already in the public domain as consideration appears to be offering nothing at all since individuals already have that right. If that is the case wouldn't this agreement be an illusionary contract and unenforceable?

[paragonie-scott]

What is the legal theory behind the enforcement of this agreement since you acknowledge that the code remains in the public domain?

The problem with public domain is that other jurisdictions do not recognize it in their own local enforcement of copyright law, so effectively by virtue of living in these jurisdictions you're effectively violating the copyright laws.

That has prompted the existence of CC0 and other licenses.

Attaching a public license to public domain code might seem silly, but unfortunately that's a necessary step for foreign contributors to navigate their own legal system with minimal liability (where "minimal" hopefully means "zero").

[marctjones]

Isn't that situation better addressed by a simple public domain dedication rather than trying to enforce a contract?

Or simply stating that where this work is not in the public domain it is licensed under the terms of a existing FOSS license? (Although that case seems like it could get confusing really quick, which is probably why most other agencies have opt for simply doing a public domain dedication or using the CC0).

[johnmod3]

we went thru a long discussion on this when Army Research Lab came out with their OSS policy. they we trying to create their own OSS-type license agreement as well. see https://github.com/USArmyResearchLab/ARL-Open-Source-Guidance-and-Instructions and eventually came to CC0 1.0 Universal License proliferation isn't the best thing for the OSS community : https://en.wikipedia.org/wiki/License_proliferation

[shawoods]

You are all raising very valid issues and questions.

First, I want to provide our perspective about “public domain.” The idea that U.S. law requires Federal government employees to put creative works in the public domain is a bit of an overstatement. The U.S. Copyright Act does not explicitly define public domain. What the Act actually does is make works created by U.S. Federal government employees ineligible for copyright protections (17 U.S.C. 105). The purpose of section 105 is to prevent the U.S. government from using copyright to impose restrictions on the public’s access to and use of these creative works. Public domain is generally understood to refer to creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws. Not all countries acknowledge the concept of public domain.

Second, the legal framework that makes works created by U.S. Federal government employees ineligible for copyright protections (17 U.S.C. 105) was written long before the invention of software. The first statute on point was as early as 1895 and then again in 1909 and finally recodified in 1976. Creative works at that time were mostly static -- maps, publications, compendiums. Software is a vastly different animal than maps or publications. Software constantly evolves with each contribution potentially having a different copyright and license status.

Third, merely placing source code in the public domain with CC0 1.0 does not address how contributions will affect the openness of the project over time. We think the open source and free software communities have made incredibly important progress on how to keep code freely available to the public as the code evolves.

The draft agreement relies on contract theory instead of copyright law. It’s more like a terms of service with the idea being that the applicable terms are the open source license associated with the project repository (e.g., MIT, BSD-3, Apache 2.0). The contribution process, by using the Developer Certificate of Origin, would likewise be licensing the developer’s contribution under the same license. Part of the reason for this approach is to avoid adding to the license proliferation problem.

We readily admit that the agreement is not perfect, which is why we released it as a draft for comment from the community. We appreciate your feedback and any suggestions on how to make the agreement better!

[blakelapierre]

Why is the US government providing different guidance on this issue to different people? tinjaw says that Army lawyers were very explicit about being unable to license code, but here is the Dept. of Defense claiming otherwise?

[sephcoster]

First - Thanks for having this discussion in the open 👏 and thanks for your replies to date.

Can you explain more about the Contract Theory approach and the use cases it addresses that are not already addressed by the approaches (many CC1.0) of 18F, Code.gov, CFPB, NASA, etc?

What kinds of scenarios / contribution models would the proposed differences help solve for / promote? Should other government organizations using CC1.0 or other more widely adopted licenses be taking these into account?

[tinjaw]

BTW, As a DoD organization, you fall under the DODCIO. And the CIO says that existing OS licenses are good enough. As a Department of the Army civilian, I need to follow Army rules and regulations. If I am following "my commander's guidance" I am more likely to get approval.

Right now my "chain of command" via that webpage says "Public domain where required by law. You must release it as "public domain" (when releasing it at all) if it was developed by a US government employee as part of their official duties."

As a worker bee I need something with a signature on it that I can point to when explaining my actions.

[missyk5150]

If we were in the casino on the computers ran by 0ld(amd) now (intel) the surveillance software they are not allowed to do visual and audio unless an officer of the non-federal but the state is present. Any one who understands more than me about the way to write and do these codes can help the idea here. From what I noticed it's as if the Federal licence makes it so the gov here can not outright ask for a civillian to do this but if someone has a post with a graphic picture . They may have the right to be able to protect or mark claim to the contributions they made... to say they would like sourcecode to or creative commons to assist in the rights or being a citizen to not categorize the works with the Federal works that they are contributing posts and discussing them with. its also a possibility to repost the whole federal work as your exampke of what the problem is to solve and to get help.. but then do a sign out and a sourcecode and a GNU and a creative commons licence at the end of the material that needs the help to resource and re.cru.it the material as a piece that you redid or made your own way in your whole work.then source the hell outta that. This will make it reavailable for the Federal gov to use as the same kind they have been using since the start. but revamped to suit the specific ideas that they could not do federally when it was without a civillians rights attached. ...... Wish i knew how to talk with the fancy words y'all use but I am a novice but my mentor worked for E.G.&G. EDGERTON GRIER AND GERMAINHAUSER??? IN SANTA BARBARA. BACK WHEN ALICE COOPER WAS STILL FLYING ON TOUR IN HIS LEER JET. THE EG&G IS NOW THE NSA & DOD THEY ARE VERY SPECIALIZED AND INTELLIGENT .. FOR ALL THE U.S. WE GET TO HAVE THIS LEVEL Q PROTECTION HIGHEST ON THE BOARD OF SECURITY IN THE WORLD.. THE U.S. PROVIDES THIS AND THE MILITARY TOO. IT IS GOOD TO BE HERE IN THE USA.

[andrewgdunn]

I for one think your contributions are really moving us forward @missyk5150. You seem to be inconsistently signing off on your contributions though, before I parse that one above do you think I could get a signoff from you?

[seanenck]

I think we can all agree "IT IS GOOD TO BE HERE IN THE USA" is both true and only properly expressed in all caps, any lower case letters would not properly express the proper amount of patriotism.

Seriously, though, someone should probably reign this @missyk5150 thing in here

[missyk5150]

Hey don't pick on me if you are I am sad. If you are not than i misunderstood. I am not here for ridicule I just don't know how to express myself in a verbal manner as high level as you can. If your just going to pick on people you will never get this project anywhere. It's about working together. Sorry if you can't accept my CAPS ON. On Feb 26, 2017 3:18 PM, "Sean Enck" notifications@github.com wrote:

I think we can all agree "IT IS GOOD TO BE HERE IN THE USA" is both true and only properly expressed in all caps, any lower case letters would not properly express the proper amount of patriotism.

Seriously, though, someone should probably reign this @missyk5150 https://github.com/missyk5150 thing in here

— You are receiving this because you were mentioned. Reply to this email directly, view it on GitHub https://github.com/deptofdefense/code.mil/issues/14#issuecomment-282597201, or mute the thread https://github.com/notifications/unsubscribe-auth/AY1OMFUnC4C-dKqsXvWNf_L19Xq__qq4ks5rgghcgaJpZM4MKteB .

[BrandonBouier]

Everyone, let's keep this conversation on topic.

[shawoods]

Why is the US government providing different guidance on this issue to different people? tinjaw says that Army lawyers were very explicit about being unable to license code, but here is the Dept. of Defense claiming otherwise?

There are multiple organizations within the U.S. Federal government that provide guidance about open source and procured source code. Within that guidance and the law, however, there are many possible avenues to pursue. Intelligent minds will differ on the "best" avenue and every organization (for example, a research lab versus a program office) has unique circumstances that affect which option might make the most sense. This initiative is not intended to set DoD policy, but rather exploring alternate ways for joining the open source community.

Can you explain more about the Contract Theory approach and the use cases it addresses that are not already addressed by the approaches (many CC1.0) of 18F, Code.gov, CFPB, NASA, etc?

Take a read on ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996), which cites to U.S. Supreme Court case, Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991). There is some precedent in attaching agreements to public domain materials.

We think there is a lot of value in project maintainers being able to select the open source or free software license that makes the most sense for the project. CC0 1.0 is an option, but so is Apache 2.0 or GLPv3. We are exploring the feasibility of being able to select from a variety of widely adopted open source agreements rather than just being limited to one, but of course this is challenging because we don't have copyright.

[BrandonBouier]

We've pivoted based on user feedback. Take a look at the current CONTRIBUTING.md

[fulldecent]

The updated CONTRIBUTING states that a license is to be chose by specific agencies. In this light, this instant issue is now out of scope for this project. I recommend to close this issue.

Regarding whether public domain projects are allowed to restrict incoming contributions based on a CONTRIBUTING file, then yes they can.

[blakelapierre]

Within that guidance and the law, however, there are many possible avenues to pursue.

The issue opener was quite explicit about what they were told:

I am a government employee. I write software. Everything I write is PUBLIC DOMAIN. I tried many many times to use a license (any license) and was told by the Army lawyers that by law it is PUBLIC DOMAIN and can not be put under any license. One example was during the APPS for ARMY contest. I was told that I had no choice. I could not license it in any way.

There are multiple organizations within the U.S. Federal government that provide guidance about open source and procured source code.

Maybe they should get together and give us a real answer?

[ckaran]

@tinjaw Take a look at what ARL has done. There may be some help for you in there. For what it's worth, I cowrote that policy and may be able to help you out.

@blakelapierre It is difficult to get a complete answer in all cases. There are different laws governing different agencies, and then different regulations governing suborganizations within agencies. As an example NASA is governed by the National Aeronautics and Space Act and other acts, some of which don't apply to the DOD. The DOD itself is broken into different services that are governed by different regulations, etc., etc. etc. So what is true of one part of the US Government may not be true of a different part.

[blakelapierre]

My understanding is the same as told in the opener. All US government work is public domain and completely owned by the people. I don't see how the US government can put a license restricting, or otherwise controlling, peoples' use of any text it, its employees, or its contractors produce.

Can anyone cite a particular sentence in the law that contradicts the Army's lawyer?

[jbjonesjr]

@blakelapierre check out the discussion on this topic in #12.

[fulldecent]

@blakelapierre The ARL recommends releasing under CC0, which specifically disclaims copyright. This is the same if you were to personally copy and paste other code you found on the internet that was properly licensed CC0 and then you relicensed it CC0. You can do that.

Next is a "restricting".

You can't restrict other people from using the published work as they see fit. That includes requiring them to include copyright notices in their files like MIT does. This is why I argue MIT is unsuitable for this US Government work (excluding NASA, NASA is special).

Lastly, we go to disclaimers.

CC0 includes disclaimers. THIS IS IMPORTANT (see #36). If you release software and say "this code works for launching GPS satellites" (actually a goal of this project) and your software fails a launch mission because you have if (a = b) instead of if (a == b ) (this actually happened, people died) then somebody might sue you. They might win that lawsuit because they will argue you provided code to launch something and somebody died following your instructions. This is why we use disclaimers when we release code, there is big uppercase lettering telling you that while we are releasing something to the public, we are disclaiming certain responsibilities.

That disclaimer process is related to your publishing of the project and is ENTIRELY ORTHOGONAL to you asserting copyright or other rights.

[shawoods]

I've seen this in a few threads, but the concepts of lack of copyright, public domain, and CC0 keep getting conflated.

• U.S. law does not require Federal government employees to put creative works in the public domain. The U.S. Copyright Act does not explicitly define public domain. What the Act actually does is make works created by U.S. Federal government employees ineligible for copyright protections (17 U.S.C. 105). U.S. Federal works are copy-less.
• You cannot license copy-less works under copyright law because licenses presume copyright ownership.
• Other agencies that use CC0 for Government works are not licensing the original Government work under CC0. Rather, in jurisdictions where the U.S. Government has copyright protections, the work is being licensed under CC0 to achieve a public domain dedication. These agencies are also asking that copyrighted contributions likewise be licensed under CC0. For many of you, I know this is old news, but I keep seeing the idea that Government works=CC0. That's an inaccurate oversimplification of the problem set.

Everything I write is PUBLIC DOMAIN. I tried many many times to use a license (any license) and was told by the Army lawyers that by law it is PUBLIC DOMAIN and can not be put under any license.

@tinjaw I generally agree, but would state it a little differently. I would say that everything a U.S. Federal employee creates in the scope of their duties is not eligible for copyright protections. People in the U.S. generally understand that to mean the work is in the public domain. See second bullet above -- you cannot license Government works under copyright law because of the absence of copyright.

I don't see how the US government can put a license restricting, or otherwise controlling, peoples' use of any text it, its employees, or its contractors produce.

@blakelapierre The U.S. Government cannot restrict people's use of or access to Government works via a license under copyright law. Our original strategy was using contract law as a bridge to using the terms and conditions of widely adopted open source licenses. We've pivoted since then with the updated strategy that focuses on the contribution process instead.

This is why I argue MIT is unsuitable for this US Government work

@fulldecent I may be taking your comment out of context, but under our updated strategy where the open source license is limited to copyrighted contributions (using the DCO process) and foreign jurisdictions where we have copyright, I see no limitations on the type of license we might use. The project maintainer would have the freedom of choice on which license to use based on the needs of the project. I also think the need for disclaimers is different for the federal Government than private parties, but I'll address that in #36.

[blakelapierre]

I agree with many of the points being made since my last post, however, the current proposal requires contributors to state:

Everyone is permitted to copy and distribute verbatim copies of this
license document, but changing it is not allowed.

We have established here that the US Government cannot restrict use of any of its work, however if the contributors' Certificates are released as part of their contributions, the US Government will be making a claim about what others are allowed to do with the release.

I noticed that the current proposal for licensing indicates to use licenses that would restrict use of US Government work. Specifically, the MIT license has been called out as being incompatible, but it is still being proposed to use.

[shawoods]

@blakelapierre The language you are quoting is from the DCO text. Anyone intending to use DCO must comply with the terms of the DCO license document. Our proposed strategy is to implement the DCO process for contributions. We can't change that language.

...if the contributors' Certificates are released as part of their contributions, the US Government will be making a claim about what others are allowed to do with the release.

If we merge commits executed under the DCO process, the USG, just like everyone else, has to abide by the terms of the license invoked by the contributor in the DCO.

Specifically, the MIT license has been called out as being incompatible

This may have been stated, but it's not true. Under our strategy, the license, MIT or otherwise, is not being applied against the Government written code, which has no copyright, but rather the copyrighted contribution or the code where it is eligible for copyright protections.

Maybe your underlying concern is that the Government is stating that it will only accept contributions submitted under the license the USG specified? There is no restriction on the USG's ability to state that it will only accept contributions under the license chosen for the project. Agencies working in open source routinely do this as does the open source community in general. There is no legal prohibition on the USG's ability to specify the conditions under which it will accept contributions from the public. The fact that USG written code does not have copyright is a separate matter altogether.

[blakelapierre]

That's fair, but I can't imagine the success of code that is multi-licensed. Having to write the liably-accurate manuals on what code is available (or, maybe, it turns out: it's not available to you for x technicality) under which license is a job that I think few will volunteer for.

I think the solution is simple: the AS IS license. Anything else is a lie or unnecessary. The code is the code and there is really no license that can stop someone from copying it and using it for their own purposes. I mean, really.

No license can guarantee anything other than AS IS. The machines are going to run the text they're given, not the text someone thought they were giving them.

Building some kind of verification and classification system of AS IS code would probably be interesting.

[blakelapierre]

Maybe your underlying concern is that the Government is stating that it will only accept contributions submitted under the license the USG specified? There is no restriction on the USG's ability to state that it will only accept contributions under the license chosen for the project. Agencies working in open source routinely do this as does the open source community in general. There is no legal prohibition on the USG's ability to specify the conditions under which it will accept contributions from the public. The fact that USG written code does not have copyright is a separate matter altogether.

I think the concern comes when the US Government republishes licensed code. I think we've established that all US Government publications are public domain, uncopyrightable, and/or unlicensable; meaning, anyone could do anything they'd like with any part of the publication they'd like. Now, we have reached a contradiction: anyone may freely "violate" any licensed code by virtue of their ownership of publications of the US Government, or, the US Government published a not public domain work.

[marctjones]

@blakelapierre In the typical case, no one, including the government, gains a copyright in a work merely because they republish it. Copyright is granted by the /act of authorship/ and is not, under the current law, dependent on the /act of publication./ To determine who the copyright holder is you need to look to who authored the work (and its subsequent history of changes in ownership/assignment if any.)

The government just like any private citizen can publish and republish copyrighted works without affecting the copyright status of the work. As long as the government has a license to publish the work, the government can do so without violating the copyright of the copyright holder.

I am not your attorney. This is not legal advice and is only intended to provide information. You should consult with an attorney if you need legal advice as the application of law depends on the facts presented in each situation. These are my views and not the views of my employer.

[marctjones]

@blakelapierre It is actually very common for FOSS projects to contain source code licensed with different licenses. But you are right it can get complicated. You might want to check a recent presentation at FOSDEM on Mixed License FOSS Projects. Unfortunately it appears that there is no video for the talk but you can still see the slide deck.

You can also look the Software Freedom Law Center's advice related to this situation.

• Maintaining Permissive-Licensed Files in a GPL-Licensed Project: Guidelines for Developers
• Managing copyright information within a free software project

[marctjones]

@shawoods I feel like you can close this issue. This horse is pretty close to dead.

[shawoods]

This has been a great thread. I think we've closed out all the issues, but if someone disagrees let me know and I can always reopen it.

[blakelapierre]

The government just like any private citizen can publish and republish copyrighted works without affecting the copyright status of the work.

What law allows this?

What the Act actually does is make works created by U.S. Federal government employees ineligible for copyright protections (17 U.S.C. 105).

A derivative work is a work. If the US Government publishes it, I can use it

The premature closing of this issue was really uncalled for.

[blakelapierre]

The draft agreement relies on contract theory instead of copyright law.

Contract theory is predicated on consideration. Is there a contribution payout schedule somewhere? Will payments be negotiated per contribution?

[marctjones]

@blakelapierre You will note that they have pivoted in a new direction and are not relying on contract as the basis for their strategy anymore. But even if they did consideration can come in many forms, it does not need to be a monetary payment. While I had some questions about consideration myself, I was never intending to suggest that monetary payments needed to be involved to form a binding contract. My apologizes if I was not clear in earlier posts.

[blakelapierre]

@marctjones, to me, a pivot is a continuation of your path (albeit, yes, in a new direction). I didn't realize that much of the past claims here were disclaimed (it's kind of unclear at first glance which ones those are) in the abrupt pivot (is there an announcement thread?).

Can anyone produce instances of the US Government republishing copyrighted works with restrictive licenses, so that we can look at them for guidance? I can't recall an instance at the moment, but I do seem to remember seeing many disclaimers/warnings about being redirected to external sites which may offer content under different terms (some, even had/have "understanding confirmation" buttons).

__ After I wrote the above, I thought of https://opencatalog.darpa.mil/ (though, the earlier reported URI's now 404). I went to check if the code was offered under any license, but my browsers are warning me that the site is serving up a bad certificate (looks to be from an untrusted issuer).

[marctjones]

@blakelapierre

Publication is not generally relevant to who the copyright holder is. The copyright Office publishes some wonderfully readable circulars to explain parts of copyright law. According to Circular 1

Publication is no longer the key to obtaining federal copyright as it was under the Copyright Act of 1909.

But do note that:

Before 1978, federal copyright was generally secured by the act of publication with notice of copyright, assuming compliance with all other relevant statutory conditions. U.S. works in the public domain on January 1, 1978, (for example, works published without satisfying all conditions for securing federal copyright under the Copyright Act of 1909) remain in the public domain under the 1976 Copyright Act

While not exactly on point Circular 14 explains how copyright works with derivative works generally. According to the copyright office:

The copyright in a derivative work covers only the additions, changes, or other new material appearing for the first time in the work. Protection does not extend to any preexisting material, that is, previously published or previously registered works or works in the public domain or owned by a third party.

As a result, it is not possible to extend the length of protection for a copyrighted work by creating a derivative work. A work that has fallen into the public domain, that is, a work that is no longer protected by copyright, is also an underlying “work” from which derivative authorship may be added, but the copyright in the derivative work will not extend to the public domain material, and the use of the public domain material in a derivative work will not prevent anyone else from using the same public domain work for another derivative work.

The USA.gov site also has a list of Copyright Exceptions for U.S. Government Works

[marctjones]

Someone suggested that BRLCAD is an example of a work that is largely produced by the government and released under a FOSS license. You might want to check out issue #84 for that discussion.

In any event I do believe that at least to the extent that this issue was originally questioning on the basis of using contract law as a legal tool to take advantage of a copyright license, that the issue is now moot.

[blakelapierre]

It's too bad this project is being controlled by people with no apparent connection to the project or the US Government. I mean, really; I posted a blatant logical contradiction in the current strategy before going to sleep and the issue was closed before I woke up, without comment.

@marctjones, your linked project specifically disclaims being a publication of the US Government (read the footer).

In any event I do believe that at least to the extent that this issue was originally questioning on the basis of using contract law as a legal tool to take advantage of a copyright license, that the issue is now moot.

This issue was never originally about contracts. The explanation given in follow-up comments was that contract law/theory was being used as a "bridge" to avoid the issue raised in the opener. However, the project has since, seemingly, "pivoted" away from using any contract law/theory; meaning, the original issue is still fully open, despite being sidetracked for a long time by contract talk.

[marctjones]

@blakelapierre I believe that the change in legal tactic was announced here. The announcement also asked people to go read the new version of the CONTRIBUTING,md file which explains the theory for there current legal tack. The new legal tack was discussed and explained. You can see a more concise explanation provided by the project maintainers in the FAQ:

The updated strategy in CONTRIBUTING.md does not attempt to attach licenses to Government-written code. Rather, the strategy attaches the license to copyrighted contributions by using the Developer Certificate of Origin (DCO) process and to Government-written code in countries where that code is eligible for copyright protections.

I am sorry my attempted explanation of why I disagreed that the contradiction you pointed out exists was not helpful. I believe you are referring to the contradiction you asserted to exist when you said:

I think the concern comes when the US Government republishes licensed code. I think we've established that all US Government publications are public domain, uncopyrightable, and/or unlicensable; meaning, anyone could do anything they'd like with any part of the publication they'd like. Now, we have reached a contradiction: anyone may freely "violate" any licensed code by virtue of their ownership of publications of the US Government, or, the US Government published a not public domain work.

I suggested that no such contradiction existed because my understanding is that copyright protection does not depend on publication and that the government can use copyrighted works under a license without depriving the copyright holders of their copyrights. I also pointed out several publications from the Copyright Office that would suggest that no such contradiction exists. Maybe I am missing something though. Would love to read any sources that suggest otherwise if you have a citation to them?

[blakelapierre]

That is the contradiction.

copyright protection does not depend on publication

It's also not relevant, in my view, as the US Government or its employees do not have copyrights.

The situation, as I see it, will be, on publication of code under a restrictive license (eg. those mentioned in the current LICENSE proposal):

• The US Government has published a work
• People are restricted in their use of a US Government publication

Can you cite a statue that allows the US Government to publish copy-restricted work, or an example of the US Government publishing copy-restricted work?

On Fri, Mar 3, 2017 at 10:45 AM, Marc Jones notifications@github.com wrote:

@blakelapierre https://github.com/blakelapierre I believe that the change in legal tactic was announced here. The announcement also asked people to go read the new version of the CONTRIBUTING,md file which explains the theory for there current legal tack. The new legal tack was discussed and explained. You can see a more concise explanation provided by the project maintainers in the FAQ:

The updated strategy in CONTRIBUTING.md does not attempt to attach licenses to Government-written code. Rather, the strategy attaches the license to copyrighted contributions by using the Developer Certificate of Origin (DCO) process and to Government-written code in countries where that code is eligible for copyright protections.

I am sorry my attempted explanation of why I disagreed that the contradiction you pointed out exists was not helpful. I believe you are referring to the contradiction you asserted to exist when you said:

I think the concern comes when the US Government republishes licensed code. I think we've established that all US Government publications are public domain, uncopyrightable, and/or unlicensable; meaning, anyone could do anything they'd like with any part of the publication they'd like. Now, we have reached a contradiction: anyone may freely "violate" any licensed code by virtue of their ownership of publications of the US Government, or, the US Government published a not public domain work.

I suggested that no such contradiction existed because my understanding is that copyright protection does not depend on publication and that the government can use copyrighted works under a license without depriving the copyright holders of their copyrights. I also pointed out several publications from the Copyright Office that would suggest that no such contradiction exists. Maybe I am missing something though. Would love to read any sources that suggest otherwise if you have a citation to them?

— You are receiving this because you were mentioned. Reply to this email directly, view it on GitHub https://github.com/deptofdefense/code.mil/issues/14#issuecomment-284036640, or mute the thread https://github.com/notifications/unsubscribe-auth/AAvc-1VJfZwP5B1vB3Uf074zZ8Qn0Z5Iks5riF_jgaJpZM4MKteB .

[blakelapierre]

To further illustrate the issue,

if the US Government publishes MIT licensed software, that publication is copy-restricted.

[marctjones]

Yes, you are correct if the U.S. government publishes a work containing MIT licensed code by a third party, then the publication as a whole would be at least in party be restricted by copyrights. I think that is the goal of this group's effort in fact.

I would suggest you look at the license that is asserted in the COPYING file of BRL-CAD source code, instead of the disclaimer and license for the website. Probably why someone else suggested it as a reference. And would be good to discuss in the issue that was open for that.

But you might also want to check out SELinux which was originally a research project inside of the NSA in collaboration with outside contributors.

[tomberek]

@marctjones That is correct.

@blakelapierre My interpretation is that the code created by government employees remain in the public domain, while contributions by third parties have copyright. Because public domain is the ultimate "recessive gene", the de-facto license for a popular project will end up being the chosen license.

If the public doesn't like the license provided, they are free to fork the original commit (always in public domain) and republish/re-license at will. No contributor is forced to contribute to the government repo vice a fork.

Reopening this issue due to continued interest.

[marctjones]

@blakelapierre I am still a little confused by your use of the word "publish" since you said it was not relevant to your position. If it is not relevant to the contradiction, then what difference to the exist of copyrights does it make that the government is publishing a work?

If your concern is about the U.S. government's ability to hold copyright or its inability to acquire copyrights in works the government creates through its employees, then I would point you to 17 U.S.C. 105:

Sect. 105. Subject matter of copyright: United States Government works

Copyright protection under this title [17 USCS Sects. 101 et seq.] 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.

It both states that copyrights are not granted to the federal governments in works created by the U.S. government and makes clear that the U.S. government can hold copyrights if acquire in other ways.

But the ability to hold copyright seems besides the point to me because this proposal does not seem to be for the government to acquire title to the copyrights of contributions of third parties. The proposal is to tactically use third party copyrights by republishing copyrighted code as part of a government work. The use of copyrighted material would in the typical cases make the government work a derivative work subject to the copyrights on the original work. The government (and anyone else for that matter) could then only publish the derivative work in accordance with the FOSS licensing terms the government is making use of the original work under. A very common way for a FOSS project to operate.

I am honestly confused as to what the contradiction you are concerned with at this point. It also seems clear from the House Report for Section 105 that this strategy would not be out of line with discretion that Congress (or at least the House committee) intended to granted to government agencies; even if this specific situation was not contemplated. But regardless the House Report makes clear that Section 105 was not intended to deprive private citizens of their copyright so the use of a work by the government would still be subject to the copyrights that existed in the work. Hence my suggestion that Circular 14 (while not authoritative since it is just a summary of the law) might be a good document to read if someone wanted to read about the Copyright Office's view on how the creation of a derivative work affects copyrights.

I believe at this point it is fair to say, that I simply disagree with the position I understand you to be taking. If you have additional citations beyond the ones I have provided I would love to read them, but I do not see the contradiction you are asserting exists. I have enjoyed the conversation though. Thank you!

@tomberek I would respectfully suggest that this issue has been resolved as the legal basis for your project is explained in the current version of the FAQ and Section 1 of CONTRIBUTING.md, Good luck with your project. It is interesting to see an attempt at such a strong embrace of FOSS values from the DoD. Perhaps we will see some DoD folks at LibrePlanet this year.

[blakelapierre]

I am still a little confused by your use of the word "publish" since you said it was not relevant to your position.

@marctjones, you posited a "copyright protection" for a US Government work in an argument seeming to assert that the US Government takes no rights in some things it might publish (e.g. MIT licensed software):

I suggested that no such contradiction existed because my understanding is that copyright protection does not depend on publication and that the government can use copyrighted works under a license without depriving the copyright holders of their copyrights.

What I indicated was not relevant, was whether or not copyright was related to publication, as US Government works are already barred from copyright.

I am honestly confused as to what the contradiction you are concerned with at this point.

I'll reduce it.

Premises:

1. Congress may make no law abridging speech
2. US Government works may not be copyright
3. US Government may only conduct lawful activities
4. MIT license states certain speech must be maintained to copy

Contradiction:

1. US Government publishes MIT licensed software and demands all others must maintain certain speech to copy software.

The US Government can make no such demand, therefore it can publish no such software.

If you have an example of copy-restricted licensed software being actively published by the US Government, I would love to take a look at it. I'd also love to examine any statue that indicates the US Government can publish documents with copy-restricted licensing.

[royfielding]

An open source software license is a compiled set of permissions given under a set of conditions. As such, the license terms do not restrict anyone or anything. What they do is remove restrictions that might already exist by law under copyright, trademark, patent, and related codes/regulations/judgements/etc. When those restrictions do not exist (i.e., in the public domain), the set of conditions are irrelevant because the recipient doesn't need any more permissions.

The trick is to ensure that the government is not claiming copyright for its own work, regardless, while clarifying that the license only applies when those permissions are needed for other reasons. This can be achieved with just a simple disclaimer that says the license only applies if, for any reason, any part of the work is found not to be in the public domain. Hopefully, we will eventually be able to do that without requiring a Copyright 101 course in every issue forum hosted by every government agency.

In fact, the only thing preventing a US government work from being licensed under any open source license is the knee-jerk reaction given by too many government lawyers. Giving permissions is not the same as demanding copyright protections.

[marctjones]

@tomberek I would suggest that since you reopened this issue because of continuing discussion and interest that you can close it now.

I agree with @royfielding that not every government projects should be able to release FOSS code "without requiring a Copyright 101 course in every issue forum hosted by every government agency." It seems this thread when it was active degenerated into lectures about copyright law. At this point perhaps you should go with your attorney's advice and resolve this issue if you are satisfied that there is no "need to change the law" as the original issue was titled.

[blakelapierre]

This issue should not be closed until the US Constitution is modified to alleviate the identified contradiction or until the proposed licenses do not restrict speech.

On Mar 15, 2017 9:16 AM, "Marc Jones" notifications@github.com wrote:

@tomberek https://github.com/tomberek I would suggest that since you reopened this issue because of continuing discussion and interest that you can close it now.

I agree with @royfielding https://github.com/royfielding that not every government projects should be able to release FOSS code "without requiring a Copyright 101 course in every issue forum hosted by every government agency." It seems this thread when it was active degenerated into lectures about copyright law. At this point perhaps you should go with your attorney's advice and resolve this issue if you are satisfied that there is no "need to change the law" as the original issue was titled.

— You are receiving this because you were mentioned. Reply to this email directly, view it on GitHub https://github.com/deptofdefense/code.mil/issues/14#issuecomment-286737611, or mute the thread https://github.com/notifications/unsubscribe-auth/AAvc-5w_j7IvL8p9_4os33SrSEc4TtlOks5rl-SogaJpZM4MKteB .

[blakelapierre]

What was this closed?

[jordangov]

My apologies for not explaining this, but there has been no activity since Mar 15 and while it might be nice to have the US Constitution changed to alleviate any perceived contradictions, that is not the goal of this repository. We have legal counsel that has discussed the topic at length and we believe (via counsel) that we have a good path forward.

We thank everyone for the ongoing discussion and we invite any new issues for specific topics, concerns, or questions in new GitHub issues.