Subject: Re: Can OSI specify that public domain is open source?
From: Andy Brooks <ajbrooks@gmail.com>
Date: Wed, 7 Sep 2011 16:01:49 -0700
Wed, 7 Sep 2011 16:01:49 -0700
I think Rick's correct. From the Dam Things case (
http://scholar.google.com/scholar_case?case=1360880396028036231): "An
author's right to protection of the derivative work only extends to the
elements that he has added to the work; he cannot receive protection for the
underlying work." A non-American in that situation would probably only be
able to use the elements added to the underlying work.

Also I have a question as to whether the US Gov would even have standing to
sue in a European court. There are a lot of countries that don't have "work
for hire" doctrines and therefore may not recognize the US Gov as the true
author of the work. Even with an express copyright assignment there could
still be issues, but that's probably too much digression...

On Wed, Sep 7, 2011 at 3:14 PM, John Cowan <cowan@mercury.ccil.org> wrote:
>
>
> > In that hypothetical, the US resident who published a BSD-licensed
> > derivative work would not be violating the Feds' copyright, as
> > no such copyright would exist domestically.  However, the moment
> > he/she checked the code into his/her favourite code hosting site in
> > Amsterdam, legal hilarity in European courts might ensue (copyright
> > violation claims).
>
> You might be right, but I don't think so, because of the U.S. principle
> that a derivative work made under proper license belongs solely to the
> deriver, unless there is an agreement otherwise.
>
> --
> I don't know half of you half as well           John Cowan
> as I should like, and I like less than half     cowan@ccil.org
> of you half as well as you deserve.             http://www.ccil.org/~cowan
>        --Bilbo
>


I think Rick's correct. From the Dam Things case (http://scholar.google.com/scholar case?case=1360880396028036231): "An author's right to protection of the derivative work only extends to the elements that he has added to the work; he cannot receive protection for the underlying work." A non-American in that situation would probably only be able to use the elements added to the underlying work.

Also I have a question as to whether the US Gov would even have standing to sue in a European court. There are a lot of countries that don't have "work for hire" doctrines and therefore may not recognize the US Gov as the true author of the work. Even with an express copyright assignment there could still be issues, but that's probably too much digression...

On Wed, Sep 7, 2011 at 3:14 PM, John Cowan <cowan@mercury.ccil.org> wrote:

> In that hypothetical, the US resident who published a BSD-licensed
> derivative work would not be violating the Feds' copyright, as
> no such copyright would exist domestically.  However, the moment
> he/she checked the code into his/her favourite code hosting site in
> Amsterdam, legal hilarity in European courts might ensue (copyright
> violation claims).

You might be right, but I don't think so, because of the U.S. principle
that a derivative work made under proper license belongs solely to the
deriver, unless there is an agreement otherwise.

--
I don't know half of you half as well           John Cowan
as I should like, and I like less than half     cowan@ccil.org
of you half as well as you deserve.             http://www.ccil.org/~cowan
       --Bilbo