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From "Lawrence Rosen" <lro...@rosenlaw.com>
Subject Public domain v. Apache ICLA
Date Fri, 16 May 2014 18:35:50 GMT
As Richard Fontana said, for most government lawyers this is what they call
the "public domain":


17 USC 105: 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.


But I would insist that the actual *public domain* is far bigger than that
small subset of government creations. For example, non-patented or
out-of-patent inventions are in the public domain. Trade secrets that are
intentionally disclosed are - at least for some purposes - in the public
domain. And copyright itself is excluded for a large category of
non-governmental works:


17 USC 102(b): In no case does copyright protection for an original work of
authorship extend to any idea, procedure, process, system, method of
operation, concept, principle, or discovery, regardless of the form in which
it is described, explained, illustrated, or embodied in such work.


Many, many things are in the public domain. For example, I would argue, APIs
for industry standards like Java are in the public domain, despite the
recent decision of the CAFC in the Oracle v. Google case. :-(


The Apache ICLA simplifies this mess for everyone. Contributions to Apache
come from *individuals* who voluntarily contribute only their own works, or
authorized works from the individual's employer, or public domain works. We
trust our contributors to honor the ICLA and we teach them, as best we can,
to understand their individual obligations for due diligence.


The resulting contributions are then collected, organized, and released to
everyone - including to the US government! - by Apache projects under the
Apache license.


Quite frankly, given the uncertainty about what's in the public domain, we
should be grateful for the ICLA and Apache's attempted due diligence in the
collection and organization of Apache software. This is far more reliable to
software consumers than assumptions about the public domain itself.




bcc: Kerry Broome, Naval Research Lab


Lawrence Rosen

Rosenlaw & Einschlag (www.rosenlaw.com) 

3001 King Ranch Road, Ukiah, CA 95482

Cell: 707-478-8932   Fax: 707-485-1243


-----Original Message-----
From: Richard Fontana [mailto:rfontana@redhat.com] 
Sent: Friday, May 16, 2014 9:11 AM
To: legal-discuss@apache.org; lrosen@rosenlaw.com
Subject: Re: ICLA US Government


On Thu, May 15, 2014 at 09:03:01PM -0700, Lawrence Rosen wrote:


> Your lawyers are making a mountain out of a molehill. Is yours the 

> only US government department that objects to Apache's  long-held 

> contribution requirements? Or do we have a bigger problem with US 

> government agencies that we need to address more broadly?


I have come to believe as a result of threads like this -- which have
counterparts in non-ASF projects I've had involvement in as a lawyer

-- that there *is* a big problem with IP lawyers for US government agencies
in relation to open source. They appear to be all over the place on issues
of this sort; each agency seems to have a different interpretation of what
17 USC 105 even means and how it relates, if at all, to something like the
Apache ICLA or the Apache License 2.0 itself.


- RF

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