[linux-elitists] California Copyleft Research Initiative of 2001

Seth David Schoen schoen@loyalty.org
Sun Jul 1 18:20:51 PDT 2001

Brooklyn Linux Solutions CEO writes:

> > Are you laboring under the unfounded assumption that all
> > government-funded research is -already- in the public domain?
> > 
> > ~Mr. Bad
> Well
> Yes :)
> Hell - all the research we did for the government was owned by
> the government - it has no copyright.

Original works of the Federal government are not copyrighted, but
works commissioned by the government are sometimes copyrighted.  The
government can't receive copyrights in original works, but it can
_acquire_ and _hold_ copyrights originally belonging to others.
(Those can include contractors, somehow.)

In particular:

   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.

17 USC 105.

(I think a work by a contractor in general is not considered a "work
of the United States Government"; however, the contractor's contract
may provide that the copyright in the work will be assigned or licensed
to the United States Government.)

Works by a state government _can_ be copyrighted.  (17 USC does not
mention the states, so a particular state constitution would have to
prohibit a state from holding copyrights, if the states were to be
prohibited.)  And works sponsored by a state government are routinely

Lawrence Berkeley Lab is operated by the University of California
under contract from the U.S. Department of Energy.  Things that people
write there are normally copyrighted by the Regents of the University
of California (a public corporation of the State of California), with
an unrestricted copyright license to the DOE.  (That's my
recollection; I do remember seeing LBL works with Regents copyright

Patent rights on things done at LBL are governed by the University of
California patent policy, with (I think) an unrestricted license to
the DOE.

The University of California doesn't license all publications under
the BSD license.  That was a historical thing arranged by CSRG and
used by _some_ software releases of the University and people there
since.  And you'll recall that the Regents have copyright there (they
enforced that copyright against AT&T, once upon a time).

I've already pointed out that the Bay Area Rapid Transit District (a
state "district or authority", which is a state government agency) is
distributing software under its own copyright with a proprietary
clickwrap license, prohibitings redistribution and reverse
engineering, and even including a revocation clause.

The California Public Records Act provides that software developed by a
state agency is not a public record.  Check it out:

	(a) Computer software developed by a state or local agency
	is not itself a public record under this chapter.  The agency may
	sell, lease, or license the software for commercial or noncommercial

	(b) As used in this section, "computer software" includes computer
	mapping systems, computer programs, and computer graphics systems.

	(c) This section shall not be construed to create an implied
	warranty on the part of the State of California or any local agency
	for errors, omissions, or other defects in any computer software as
	provided pursuant to this section.

	(d) Nothing in this section is intended to affect the public
	record status of information merely because it is stored in a
	computer.  Public records stored in a computer shall be disclosed as
	required by this chapter.

	(e) Nothing in this section is intended to limit any copyright

Cal. Gov. Code 6254.9.

In addition:

	(f) Nothing in this section shall be construed to require the
	public agency to release an electronic record in the electronic form
	in which it is held by the agency if its release would jeopardize or
	compromise the security or integrity of the original record or of any
	proprietary software in which it is maintained.

Cal. Gov. Code 6253.9 (section providing for public access to
electronic records in electronic form).

There are hella mega ways for government work to end up under a

Seth David Schoen <schoen@loyalty.org>  | 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

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