Re: US Govt Licensing (was licensing)

Jan C. Depner wrote:

>I just want to point out a few things about software developed by the US
>government.  I've been doing this for 26 years so I've been through this
>a number of times.  
>
>The US government cannot copyright anything - go check the US Copyright
>Office pages.  It's one line.  I also had to check this with our lawyer
>(DOD - I am not a contractor).  I really love this bit of hand waving by
>NIMA in the DTED spec:
>
>	COPYRIGHT (year of production) BY THE UNITED STATES GOVERNMENT.
>	NO COPYRIGHT CLAIMED UNDER TITLE 17 U.S.C.
>
>
>Since we can't copyright we can't license under the GPL.  All software
>published by the US government falls into the public domain.  Note the
>use of the word "published".  Export controlled software is not
>"published".  It is against the law for a company to charge the US
>government for code that was developed by the US government.  They can
>charge for enhancements/extensions but not for the code itself.  Other
>governments have different rules but this is what we have to deal with.
>
>Jan Depner
>  
>
This is really an interesting point and I think it deserves it's own 
thread. Sure, I'm into farming in Trinidad and Tobago - mainly because 
of the land that belongs to my father. But I was born between 2 beer 
factories in Milwaukee, WI, served 6 years in the USN, worked for a DoD 
contractor (Honeywell) doing test equipment software, etc. (Agriculture 
is actually a very interesting break)

Strangely, this (public domain of software developed by the U.S. 
government) is a bit of a revelation for me, and one which forced me to 
rethink quite a few things that I dealt with in the past. It  explains 
why DoD contractors retain copyright on the code produced for the U.S. 
government - especially MILSPEC items. There are some things that, for 
National Security reasons, should not be public domain. So the copyright 
is held by a U.S. company with a binding agreement with the company. BUT 
- all too often I've seen software written for the U.S. government and 
copyrighted by a U.S. company sold to foreign governments.

This sort of licensing is OK, if no breach of National Security occurs. 
That's way above my head, though I am full of opinions. Some 
substantiated. Some not.

But focusing on the economics, a piece of software written for the U.S. 
government by a U.S. company is paid for by the taxpayers. Selling a 
license to a foreign government is OK, because the revenue comes to the 
United States and is taxed by the government. So this is OK too - it's 
all proprietary.

Let's remove the DoD Security issues completely. Let's say that the 
software is a platform. Something like IITRON (ref: 
http://www.knowprose.com/mtentries/cat_free_softwareopen_source_advocacy.html#000232 
). So we have this OS used by the majority of the planet, and we're 
looking at what licensing the government should use (though, since the 
U.S. government cannot copyright anything, they'll probably need a 
corporate proxy)

The real question here is value. The perceived value of the *profit* 
versus the perceived value of improvements on the software. Now the 
*profit* is important, because the cost of development and maintenance 
always detracts from the profit.

So, when is it worthwhile for a company to GPL the code? Obviously when 
the profit off of the software gives them little/no ROI.

But then there's another factor: Demand/Resources. If the demand is high 
and there isn't enough staff to support it, that's another factor 
altogether.

So a company - still acting as a copyright proxy for the U.S. government 
- can license the software as it wishes (or, as the U.S. government 
wishes. If you want the contract, you license as the government says). 
But instead of being a decision based on what is best for the taxpayer, 
this decision is made on what is best for the company - and I think it's 
fair to say that what is best for the company is perceived as what as 
best for the citizens of the United States. So, at least on the surface, 
the system works because the Government has the weight during 
negotiations to determine the licensing of the software.

One problem. They can't change the licensing. That's up to the company 
who holds the copyright. And forcing a change of the copyright - aside 
from being a bit Orwellian - is probably a case in court that the U.S. 
government would lose based on what Jan pointed out w.r.t. the U.S. 
government not holding copyrights.

So the system, though it works right now, is imperfect. That's not 
really a surprise, since the U.S. has been leading the world with 
intellectual property issues for quite some time. The copyleft is a 
recent development, and the larger the beaurecracy and the longer it has 
become embedded, the longer it takes things to change. Had the copyleft 
been available when the decision to make U.S. government unable to hold 
a copyright, they may very well have chosen to copyleft instead of enter 
everything in the public domain.

In foreign countries, who don't have the embedded beaurecracy, it might 
be seen as better to copyleft materials instead of placing them in the 
public domain. A blaring example is the patent on the Steel Drum/Steel 
band, which historically was created here in Trinidad and Tobago, but 
this cultural treasure of Trinidad and Tobago was never protected 
because everyone thought it didn't need to be. The patent owner lives in 
Maryland, and fortunately hasn't spoken about licensing fees - at least 
publicly. Had the information on the Steel Drum been placed in the 
public domain by the government, there wouldn't have been this issue. 
Had the government copylefted it, there would have been no question 
about the issue at all. (Another example would be the Australian fellow 
who patented the wheel a few years ago).

The point is that though the United States is a powerhouse of 
'intellectual property', it may not always be the best example of what 
other countries should do. Personally, I believe that the Europeans are 
quickly becoming more advanced when in comes to 'Intellectual Property', 
but I attribute that to people who actively speak their opinions as well 
as the decreased resistance to change within the beaurecracy.

Let's face it. The United States makes a lot of money through copyright. 
Movies, music, software. The copyright holders are businesses which 
lobby the government to protect THEIR 'rights'. The American people are 
just rolling with the punches and praying that the RIAA doesn't sue 
them. And the rest of the world which hasn't reached this level of 
complexity with regard to 'intellectual property' is taking examples 
from what is happening *now*, instead of waiting for when the dust 
settles. Heck, Rosen was over in Iraq working on their new Copyright Act 
over there.

The Trinidad and Tobago Copyright Act of 1997 mirrors a LOT of U.S. 
copyright, and by borrowing so heavily from the United States, it's 
inherited a lot of the problems. What's more, they went a step further 
and allowed copyrighting of databases which is still being debated up in 
the U.S. And when applied at a governmental level, this can be a 
dangerous thing.

I can only imagine how many other developing countries out there will 
have similar problems. Should be an interesting ride...

Are there any other governments which have borrowed heavily from U.S. 
Copyright Law?

Taran