Re: Public Domain and liability
Rod Dixon, J.D., LL.M. writes: I think it may be a very good idea. In fact, some states are developing free software...especially state-run universities. It's fairly well-known that the contributions of the Univeristy of Illinois and UC-Berkeley are significant in regards to Internet software. States, of course, will not give away all (or even most) of their intellectual property, but I think some have made significant contributions as a result of the software development projects at universities, which often are sponsored by Federal grants. There's some interesting argument going on these days, too, because under some state public records laws, software developed by a state (not necessarily by a contractor or vendor) will be a public record, so that anybody may request a copy. (Some contractors are kind of scared about that, too. Remember that the ACLU recently made a very high-profile Federal FOIA request for the source code of the FBI's extremely secret Carnivore software. There are some law enforcement exceptions in the FOIA, so the FBI might not have to comply, but in general, it seems both Federal and state agencies would have to turn over most source code to most of their software, on request.) It's pretty clear that states can hold patents, but public records laws might severely limit their ability to use copyrights to control use of their original works. I once made a joke about requesting copies of all the work of a friend who works for a state government, but it's actually quite possible, in general. So what happens if someone tries to redistribute works of authorship which are matters of public record? How about derivation and sublicensing? -- Seth David Schoen [EMAIL PROTECTED] | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5
RE: Public Domain and liability
You do raise an interesting question. The answered may involve a fair use analysis but, I would be very careful about how I use a work accessed as a result of the works' "public record" or FOIA status. I doubt that all of the documents you may obtain in a carefully constructed FOIA request could be further redistributed without the pertinent permissions. One consideration is that a FOIA request may lead to documents in government records that were not created by the government. While a work provided under a FOIA request and a public domain work created by a government employee (let's say Federal worker to keep the example simple) may seem like a similar classification, in fact, they are quite different. A FOIA request could quite easily result in access to a work that is copyright protected depending on what is in the file that is the object of the request. Rod Dixon Visiting Assistant Professor of Law Rutgers University Law School - Camden www.cyberspaces.org [EMAIL PROTECTED] -Original Message- From: Seth David Schoen [mailto:[EMAIL PROTECTED]]On Behalf Of Seth David Schoen Sent: Monday, August 14, 2000 8:40 PM To: License Discuss Subject: Re: Public Domain and liability Rod Dixon, J.D., LL.M. writes: I think it may be a very good idea. In fact, some states are developing free software...especially state-run universities. It's fairly well-known that the contributions of the Univeristy of Illinois and UC-Berkeley are significant in regards to Internet software. States, of course, will not give away all (or even most) of their intellectual property, but I think some have made significant contributions as a result of the software development projects at universities, which often are sponsored by Federal grants. There's some interesting argument going on these days, too, because under some state public records laws, software developed by a state (not necessarily by a contractor or vendor) will be a public record, so that anybody may request a copy. (Some contractors are kind of scared about that, too. Remember that the ACLU recently made a very high-profile Federal FOIA request for the source code of the FBI's extremely secret Carnivore software. There are some law enforcement exceptions in the FOIA, so the FBI might not have to comply, but in general, it seems both Federal and state agencies would have to turn over most source code to most of their software, on request.) It's pretty clear that states can hold patents, but public records laws might severely limit their ability to use copyrights to control use of their original works. I once made a joke about requesting copies of all the work of a friend who works for a state government, but it's actually quite possible, in general. So what happens if someone tries to redistribute works of authorship which are matters of public record? How about derivation and sublicensing? -- Seth David Schoen [EMAIL PROTECTED] | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5
RE: Public Domain and liability
It is my understanding that State government is not bound by the same
"public domain" requirements as the Federal government in 17 USC 105. That
is, because States are not explicitly included in the exclusions of who can
hold copyrights, States have the right to copyright their works.
Given that, what are your thoughts on States using an open source license on
software they develop?
-Original Message-
From: Rod Dixon, J.D., LL.M. [SMTP:[EMAIL PROTECTED]]
Sent: Monday, August 07, 2000 8:27 PM
To: John Cowan
Cc: [EMAIL PROTECTED]; License Discuss
Subject: RE: Public Domain and liability
Good point, John. I was thinking more in terms of works being
"released to
the public domain" by expiration of copyright or some other
operation of
law. You are exactly correct. The federal government cannot claim
copyright
to its own works so those works are public domain works at their
inception
under copyright law (one caution: a patent may be obtained).
As a practical matter and aside from military or national security
uses, the
Federal government acts as a market player (rather than a software
developer) so the vast majority of software programs used by or
created for
the Federal government are works licensed to the government from
private
sector sources and university research. Of course, these works
usually do
not by operation of law immediately become public domain works.
Rod
-Original Message-
From: John Cowan [mailto:[EMAIL PROTECTED]]
Sent: Monday, August 07, 2000 7:58 PM
To: Rod Dixon, J.D., LL.M.
Cc: [EMAIL PROTECTED]; License Discuss
Subject: RE: Public Domain and liability
On Mon, 7 Aug 2000, Rod Dixon, J.D., LL.M. wrote:
Strictly speaking, this discussion is theoretical since I know
of no public
domain works that are software programs. (This is not to say
that there is
not any source code in the public domain).
Software programs written by U.S. government employees
within the scope of their employment are surely in the public
domain.
For example, see the software programs linked to
http://mapping.usgs.gov/www/products/software.html .
As a specific example,
http://geochange.er.usgs.gov/pub/tools/misc/reform.c
is the source code for a public-domain program (though not
explicitly
dedicated to the public domain within the code itself).
--
John Cowan [EMAIL PROTECTED]
C'est la` pourtant que se livre le sens du dire, de ce que, s'y
conjuguant
le nyania qui bruit des sexes en compagnie, il supplee a ce
qu'entre eux,
de rapport nyait pas. -- Jacques Lacan, "L'Etourdit"
RE: Public Domain and liability
I think it may be a very good idea. In fact, some states are developing free
software...especially state-run universities. It's fairly well-known that
the contributions of the Univeristy of Illinois and UC-Berkeley are
significant in regards to Internet software.
States, of course, will not give away all (or even most) of their
intellectual property, but I think some have made significant contributions
as a result of the software development projects at universities, which
often are sponsored by Federal grants.
Rod
-Original Message-
From: Brice, Richard [mailto:[EMAIL PROTECTED]]
Sent: Tuesday, August 08, 2000 10:23 AM
To: 'Rod Dixon, J.D., LL.M.'; John Cowan
Cc: [EMAIL PROTECTED]; License Discuss
Subject: RE: Public Domain and liability
It is my understanding that State government is not bound by the same
"public domain" requirements as the Federal government in 17 USC 105. That
is, because States are not explicitly included in the exclusions
of who can
hold copyrights, States have the right to copyright their works.
Given that, what are your thoughts on States using an open source
license on
software they develop?
-Original Message-
From: Rod Dixon, J.D., LL.M. [SMTP:[EMAIL PROTECTED]]
Sent: Monday, August 07, 2000 8:27 PM
To: John Cowan
Cc: [EMAIL PROTECTED]; License Discuss
Subject: RE: Public Domain and liability
Good point, John. I was thinking more in terms of works being
"released to
the public domain" by expiration of copyright or some other
operation of
law. You are exactly correct. The federal government cannot claim
copyright
to its own works so those works are public domain works at their
inception
under copyright law (one caution: a patent may be obtained).
As a practical matter and aside from military or national security
uses, the
Federal government acts as a market player (rather than a software
developer) so the vast majority of software programs used by or
created for
the Federal government are works licensed to the government from
private
sector sources and university research. Of course, these works
usually do
not by operation of law immediately become public domain works.
Rod
-Original Message-
From: John Cowan [mailto:[EMAIL PROTECTED]]
Sent: Monday, August 07, 2000 7:58 PM
To: Rod Dixon, J.D., LL.M.
Cc: [EMAIL PROTECTED]; License Discuss
Subject: RE: Public Domain and liability
On Mon, 7 Aug 2000, Rod Dixon, J.D., LL.M. wrote:
Strictly speaking, this discussion is theoretical since I know
of no public
domain works that are software programs. (This is not to say
that there is
not any source code in the public domain).
Software programs written by U.S. government employees
within the scope of their employment are surely in the public
domain.
For example, see the software programs linked to
http://mapping.usgs.gov/www/products/software.html .
As a specific example,
http://geochange.er.usgs.gov/pub/tools/misc/reform.c
is the source code for a public-domain program (though not
explicitly
dedicated to the public domain within the code itself).
--
John Cowan [EMAIL PROTECTED]
C'est la` pourtant que se livre le sens du dire, de ce que, s'y
conjuguant
le nyania qui bruit des sexes en compagnie, il supplee a ce
qu'entre eux,
de rapport nyait pas. -- Jacques Lacan, "L'Etourdit"
RE: Public Domain and liability
On Tue, 08 Aug 2000, Brice, Richard wrote: It is my understanding that State government is not bound by the same "public domain" requirements as the Federal government in 17 USC 105. That is, because States are not explicitly included in the exclusions of who can hold copyrights, States have the right to copyright their works. Given that, what are your thoughts on States using an open source license on software they develop? Given that you're asking for thoughts and opinions: mine is that they should be public domain only. When taxpayers' money is used to create anything, everyone should benefit. It doesn't matter to me if they are individuals, corporations, altruists or selfish scum, they all paid to get the software developed. -- David Johnson _ http://www.usermode.org
RE: Public Domain and liability
I am unsure how this can happen, if we are referring to "public domain" as that term is used in copyright. Works are not generally *released* to the public domain since the public domain describes that status of a work as a matter of law. In this respect, public domain works are not "owned" by anyone, they belong to the public. Hence, unless an individual believes he can file suit against the public, there is no one to sue for injuries from public domain works. Strictly speaking, this discussion is theoretical since I know of no public domain works that are software programs. (This is not to say that there is not any source code in the public domain). Rod -Original Message- From: Blake Cretney [mailto:[EMAIL PROTECTED]] Sent: Monday, August 07, 2000 4:01 PM To: License Discuss Subject: Public Domain and liability One reason people don't often release software to the public domain is fear of liability. The concern is that even if you place a disclaimer on the software, someone could legally distribute your software without the disclaimer. Then, if the software fails in some way, you could be sued as the manufacturer of defective software. Now, to me, this sounds crazy. However, I'm not a lawyer, and often legal decisions leave me amazed. Has anyone ever been sued, especially successfully, for a non-malicious public domain program? Does anyone have any comment on whether this is likely to happen? --- Blake Cretney
RE: Public Domain and liability
On Mon, 7 Aug 2000, Rod Dixon, J.D., LL.M. wrote: Strictly speaking, this discussion is theoretical since I know of no public domain works that are software programs. (This is not to say that there is not any source code in the public domain). Software programs written by U.S. government employees within the scope of their employment are surely in the public domain. For example, see the software programs linked to http://mapping.usgs.gov/www/products/software.html . As a specific example, http://geochange.er.usgs.gov/pub/tools/misc/reform.c is the source code for a public-domain program (though not explicitly dedicated to the public domain within the code itself). -- John Cowan [EMAIL PROTECTED] C'est la` pourtant que se livre le sens du dire, de ce que, s'y conjuguant le nyania qui bruit des sexes en compagnie, il supplee a ce qu'entre eux, de rapport nyait pas. -- Jacques Lacan, "L'Etourdit"
RE: Public Domain and liability
Good point, John. I was thinking more in terms of works being "released to the public domain" by expiration of copyright or some other operation of law. You are exactly correct. The federal government cannot claim copyright to its own works so those works are public domain works at their inception under copyright law (one caution: a patent may be obtained). As a practical matter and aside from military or national security uses, the Federal government acts as a market player (rather than a software developer) so the vast majority of software programs used by or created for the Federal government are works licensed to the government from private sector sources and university research. Of course, these works usually do not by operation of law immediately become public domain works. Rod -Original Message- From: John Cowan [mailto:[EMAIL PROTECTED]] Sent: Monday, August 07, 2000 7:58 PM To: Rod Dixon, J.D., LL.M. Cc: [EMAIL PROTECTED]; License Discuss Subject: RE: Public Domain and liability On Mon, 7 Aug 2000, Rod Dixon, J.D., LL.M. wrote: Strictly speaking, this discussion is theoretical since I know of no public domain works that are software programs. (This is not to say that there is not any source code in the public domain). Software programs written by U.S. government employees within the scope of their employment are surely in the public domain. For example, see the software programs linked to http://mapping.usgs.gov/www/products/software.html . As a specific example, http://geochange.er.usgs.gov/pub/tools/misc/reform.c is the source code for a public-domain program (though not explicitly dedicated to the public domain within the code itself). -- John Cowan [EMAIL PROTECTED] C'est la` pourtant que se livre le sens du dire, de ce que, s'y conjuguant le nyania qui bruit des sexes en compagnie, il supplee a ce qu'entre eux, de rapport nyait pas. -- Jacques Lacan, "L'Etourdit"
Re: Public Domain and liability
On Mon, Aug 07, 2000 at 01:01:07PM -0700, Blake Cretney wrote: One reason people don't often release software to the public domain is fear of liability. The concern is that even if you place a disclaimer on the software, someone could legally distribute your software without the disclaimer. Then, if the software fails in some way, you could be sued as the manufacturer of defective software. Now, to me, this sounds crazy. However, I'm not a lawyer, and often legal decisions leave me amazed. Has anyone ever been sued, especially successfully, for a non-malicious public domain program? Does anyone have any comment on whether this is likely to happen? I believe we can move this into the realm of copyrighted but publicly distributed works if we consider books which describe inherently dangerous practices for which there might be liability attached. Examples which come to mind: anything dealing with explosives or flammables, particularly "cookbooks" describing how to produce such materials. There's _The Anarchist's Cookbook_, written by William Powell and published by L. Stuart, 1971. A euthenasia book giving methods for suicide or assisted death made the headlines a few years back, _Final Exit_ by Humphry Derek, published by the Hemlock Society, 1991. The University of California online catalog lists another sixty or so titles. There are several instances of parents seeking legal redress against rock and roll bands or stars for songs or albums which were thought to have contributed to actions of children. Maralyn Manson comes to mind though a quick web search doesn't turn up any plausible mentions of him in law suits. I'd say there's a body of case law and examples which should at least provide grist for the mill here. -- Karsten M. Self [EMAIL PROTECTED] http://www.netcom.com/~kmself Evangelist, Opensales, Inc.http://www.opensales.org What part of "Gestalt" don't you understand? Debian GNU/Linux rocks! http://gestalt-system.sourceforge.net/K5: http://www.kuro5hin.org GPG fingerprint: F932 8B25 5FDD 2528 D595 DC61 3847 889F 55F2 B9B0 PGP signature
