Re: US Govt Licensing (was licensing)

'Nuther point - not all software developed by a contractor for the US
government is copyright by the company.  The government can specify that
in the contract.

Jan

On Tue, 2003-10-21 at 08:51, Taran Rampersad wrote:
> 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
> 
> 
> 
> 
-- 

********************************
Jan C. Depner
Code N43T
Naval Oceanographic Office
1002 Balch Blvd
Stennis Space Center MS, 39522
228.688.5609
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I'm a programmer with a soldering iron, and I'm not afraid to use it.