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From "Karan, Cem F CIV USARMY RDECOM ARL (US)" <cem.f.karan....@mail.mil>
Subject RE: [Non-DoD Source] Apache Daffodil Incubation Code Donation
Date Wed, 20 Sep 2017 20:17:09 GMT
> -----Original Message-----
> From: Wheeler, David A [mailto:dwheeler@ida.org]
> Sent: Wednesday, September 20, 2017 2:05 PM
> To: legal-discuss@apache.org
> Subject: RE: [Non-DoD Source] Apache Daffodil Incubation Code Donation
> David A. Wheeler:
> > > 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.
> > Was the software written by contractors, or other non-Federal employees?
> > I.e., people whose works will have copyright attached?
> (I'm still not a lawyer, but what the heck.)
> In some cases the software was written exclusively by US government 
> employees as part of their official duties (a "work of the US
> Government"), which is the issue you're focusing on.
> Also, a reminder: US law does *NOT* say there is no copyright in works of 
> the US government.  It just says there is no copyright in the
> United States.  Not the same thing.  The carve-out is very specific, and 
> there'd be no reason to be that specific and thus makes it
> *possible* to claim copyright in other countries.
> This isn't just me saying this.  The US government *itself* says this: 
> "While a U.S. government work is not protectable under U.S. copyright
> laws, the work may be protected under the copyright laws of other 
> jurisdictions when used in these jurisdictions. The U.S. government
> may assert copyright outside of the United States for U.S. government 
> works." <Caution-https://www.usa.gov/government-works>
> I think it's often unwise for the US government to assert copyrights in 
> other countries when it can't do so in its own country.  In such
> cases, the US government has to go to foreign courts to assert rights that 
> *everyone* knows it doesn't have in its own back yard... which
> looks bad to foreign courts.  But if the government is asserting copyright 
> to make sure the work can be released to everyone, then I can't
> imagine any foreign court complaining.
> The weirder problem is when the US government doesn't have copyright, but 
> has all the same rights as a copyright holder... then it can't
> transfer rights, but it can license the software any way it wants to.  But 
> that wasn't what you're focusing on here, so I'll stop on that point.

I agree with you, and I think I've brought up similar points in the past.

> > > 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.
> >
> > That may cause issues.  As far as I know, this is not an official
> > Government position, but I suspect that trying that trick may imply
> > that foreign laws are superior to US law within US jurisdiction.
> No one is claiming that foreign laws are superior to US law within US 
> jurisdiction, so that would be an irrelevant argument to make.  The
> issue here is different.
> Copyright law, like almost all other law, is *local* to a jurisdiction.  In 
> the case of copyright there are treaties and other multilateral
> agreements that cause them to have many similarities between most nations, 
> but there's it.  It's possible to have copyright within the
> jurisdiction of country 2, and not of country 1, because of differences in 
> the two countries' laws and what treaties (if any) are signed.
> The US government can, without contradiction, say that "there is no 
> copyright in country 1, and there's a copyright in country 2, so I'm
> handing the copyright in country 2 to someone else".  Now it's true that if 
> there's no copyright in country 1, there's no copyright to hand
> over.  But since there *is* a copyright in country 2, so you *can* 
> legitimately say you're transferring copyright.  I think the Apache
> Software Foundation's documents could be worded more clearly on this point, 
> because they don't acknowledge that there might not be a
> copyright in some jurisdictions.  But nothing prevents the US government 
> from *transferring* copyrights where the US *has* the
> copyright, and since that's all there is, we're done.

That is debatable, and is crux of the problem.  I accept the argument that US 
Government works may have copyright protections outside of the US, but since 
copyright depends on the jurisdiction, I'm not sure if you can transfer 
copyright from e.g. Germany into the US.  As I understand it (I'm not a 
lawyer), both the US and Germany have agreements on how to treat copyrights 
from each other (Berne convention), but that is different from saying that the 
copyright is attached to the work regardless of the jurisdiction.  The nearest 
analog I can think of is putting stickers on works; you're saying that the 
sticker is permanently attached, my belief is that one country's sticker is 
stripped off and replaced at the border by the second country's sticker.  In 
most cases, the new sticker is similar to original, but it isn't the same. 
For USG works, there may not even **be** a sticker to replace the German one.

Another example; German copyright law includes moral rights, which cannot be 
transferred to another entity.  Do those same moral rights apply when the work 
is moved into the US?  If I understand the Berne convention correctly, the 
only requirement is that the German work be given the same level of protection 
it would have had if it were originally created within the US.  But US law 
doesn't recognize moral rights in copyright, so what happens to the German 
moral rights?  Do they even exist within the US?  The German sticker was 
removed and replaced by the US sticker...

> The per-country situation is complex, e.g., see the Wikipedia page <Caution-
> https://en.wikipedia.org/wiki/Wikipedia:Copyright_situations_by_country>.
> E.g., it's unclear what relations exist between the US and Tajikistan 
> regarding copyright.  But that doesn't prevent the Apache Software
> Foundation from accepting copyright assignments.
> > Thank you for the link to your article, I've passed it along to our
> > lawyers to read through.  I suspect that they'll agree with you that
> > the contract must be reviewed in every case.
> :-).
> > What encoding are you using for your emails??? Your signature block
> > DEFINITELY got garbled on my end!
> It wasn't an encoding issue.  My system wants to sign emails, even when I 
> don't want it to.  Hopefully this email is fine :-).
> --- David A. Wheeler

Oh, the wonders of technology... :P

Cem Karan

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