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From "Lawrence Rosen" <lro...@rosenlaw.com>
Subject RE: Public Domain Software
Date Sat, 05 Mar 2005 17:41:13 GMT
> Larry, the OSI approved the NASA Open Source Agreement. It seems to allow
> code to be used but requires that the code always remain under the NOSA.
> O'Reilly explains it well
> 	http://news.osdir.com/article448.html
> but it still seems to violate the PD principle.

No, it does not. NASA does not (indeed, it cannot) claim copyright in the US
for works created by government employees during the scope of their
employment. But NASA software includes works created by contractors. And
their license deals with the fact that works not copyrightable in the US
(because they are government works here) may still be subject to copyright
protection in other countries.

I was not party to discussions between NASA lawyers and members of the OSI
board when this license was approved. (The O'Reilly article discusses the
first draft of that license before it was approved.) Perhaps one of the
participants in those meetings will comment.

/Larry

Lawrence Rosen
Rosenlaw & Einschlag, technology law offices (www.rosenlaw.com)
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242  ●  fax: 707-485-1243
Author of “Open Source Licensing: Software Freedom 
               and Intellectual Property Law” (Prentice Hall 2004)
 

> -----Original Message-----
> From: Joel West [mailto:svosrp@gmail.com]
> Sent: Friday, March 04, 2005 10:05 PM
> To: legal-discuss@apache.org
> Subject: RE: Public Domain Software
> 
> Lawrence Rosen wrote:
> 
> > US government works (e.g., works authored by an employee of the US
> > government) are not subject to copyright in the US.  They are in
> > the public domain and available to everyone for any purpose
> > whatsoever. [I'm] describing a statutory requirement that needs no
> > license to be effective.
> 
> There's fairly common exception to the public domain rule that's been in
> use for at least 30 years.
> 
> As a general principle, private firms who invest their own dollars are
> able to own the copyright (or extra-government rights) to code developed
> with Federal $. Procurement officers often grant such rights either
> because they're stupid or lazy or because they get a cheaper price (and
> don't care about the rest of the world). They might even recognize that
> creating COTS software will cause investment and innovation.
> 
> On 9:37 PM -0800 3/4/05, Lawrence Rosen doth scribe:
> > On 12:30 AM -0500 3/5/05, Noel J. Bergman doth scribe:
> >> OK, I had thought that was the case.  So then what do we make of works
> >> that should fall under that category, and yet have the GPL attached to
> them?
> >> Or some other license?
> 
> > They may be licenses for works that were written not by government
> employees
> > but instead by contractors -- which are not in the public domain. Or
> they
> > may be licensing errors by government employees who don't know the law.
> 
> Larry, the OSI approved the NASA Open Source Agreement. It seems to allow
> code to be used but requires that the code always remain under the NOSA.
> O'Reilly explains it well
> 	http://news.osdir.com/article448.html
> but it still seems to violate the PD principle.
> 
> More seriously, there's a lot of GPL code at LANL.gov and Sandia.gov.
> (There seems to be less at LLNL.gov). It could be they started from a GPL
> project, or it could be (as Larry said) that some lower level FSF fans
> haven't read 17 USC 105.
> 
> Joel
> 
> 
> 
> --
> Joel West, Research Director
> Silicon Valley Open Source Research Project
> 	http://www.cob.sjsu.edu/OpenSource/
> 
> ---------------------------------------------------------------------
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> only, are not privileged and do not constitute legal advice.
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