Subject: Re: Can OSI specify that public domain is open source?
From: Chad Perrin <perrin@apotheon.com>
Date: Wed, 7 Sep 2011 17:48:28 -0600
Wed, 7 Sep 2011 17:48:28 -0600
On Wed, Sep 07, 2011 at 07:23:06PM -0400, John Cowan wrote:
> Andy Brooks scripsit:
> 
> > 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.
> 
> That leads to very very sticky isues in the conflict of laws, a
> primitive (my dad wrote an article on it called Marks of Primitivity in
> the Conflict of Laws: A Jurisprudential Analysis 26 Rutgers L. Rev. 191
> (1972-1973), which is on line but not freely available) and messy part
> of the international (and even interstate, in the U.S.) legal system.

That's only because the various states of the US were essentially
separate nations ("states") in original conception, bound to each other
in a federation but still independent nations.  The fact that in many
ways the US is not still treated that way is more a matter of habit than
of law.

>
> My *guess* is that a court would apply the law of the place where the
> work was created to determine its owner, but that could be entirely
> wrong.

I really suspect that how the court would determine the work's copyright
holder would depend on the court.  Where the law appears pretty clear,
courts sometimes find surprising precedent or grounds for evidently
contrary rulings, usually depending primarily on the lawyers involved;
where it is vague/muddy/ambiguous, it's a crapshoot.

-- 
Chad Perrin [ original content licensed OWL: http://owl.apotheon.org ]


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