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From "Wheeler, David A" <dwhee...@ida.org>
Subject RE: [Non-DoD Source] Apache Daffodil Incubation Code Donation
Date Tue, 19 Sep 2017 19:26:35 GMT
> My STRONG suggestion to you is that you contact NFRL, AFRL, and any other
> Federal agencies that are donating code to make sure that they've done their
> due diligence to get the necessary rights to donate the code.
> While works
> created by Federal employees in the course of their official duties do not
> have copyright attached within the jurisdiction of the United States of
> America, those works may have copyright attached in foreign jurisdictions[1].

The US Government is not *obligated* to assert copyright outside its jurisdiction.  Even if
it does assert copyright, the US Government can (of course) decide to release software under
an open source software license if it holds the copyright - just like anyone else.

I do wish the Apache Software Foundation (ASF) would more directly acknowledge that some software
doesn't *have* a copyright, because this situation always complicates things.  I've posted
about this before, & noted that other organizations (like the IEEE) make it much easier
to handle this situation.

That said, this is not an insurmountable barrier.  The NSA (for example) has already released
software as OSS to both the ASF and to the Linux kernel project, so it's been done before.
 One way is for the US government to assert that it holds copyrights overseas (because it
can if it's a work of the US government), and then transfer *those* copyrights.

> Moreover, works created by non-Federal workers (contractors and such) will
> have copyright attached; unless the copyright was assigned to the Federal
> Government, or there were adequate clauses in the contracts, the
> contractors may still possess rights in the work, and they may wish to assert them[2].

There can be problems, but much depends on the contract clauses involved, contract amendments,
and contracting officer (KO) decisions.  Even if the contractor possesses rights, that doesn't
necessarily limit the US government from releasing the software as open source software. 
It's quite common for both the contractor *and* the US government to have rights in software
when the US government pays for its development.  For example, the default clause used by
the Department of Defense (DoD) is DFARS 252.227-7014; in the normal case the contractor holds
the copyright, but the government has all the same rights as if it were the copyright holder
(so it can release the software as open source software).

For more detail than you probably want, see my paper: "Publicly Releasing Open Source Software
Developed for the U.S. Government" by David A. Wheeler, Software Tech News, Volume 14 Number
1, https://www.csiac.org/journal-article/publicly-releasing-open-source-software-developed-for-the-u-s-government/

Caveat: I’m not a lawyer, and I'm certainly not a government lawyer.  But I've talked with
a lot of lawyers, and painfully drilled down details in discussion with them to try to understand
what they mean.

--- David A. Wheeler

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