Subject: Re: GNU and classified software
From: kragen@pobox.com
Date: Sat, 12 May 2001 02:48:40 -0400 (EDT)

shap@cs.jhu.edu writes:
> The contractor using GCC is not a problem -- this is a work for hire,

No, it isn't.

According to http://www4.law.cornell.edu/uscode/17/, USC title 17
section 101 says:

A ''work made for hire'' is - 

  (1) a work prepared by an employee within the scope of his or her
  employment; or

  (2) a work specially ordered or commissioned for use as a
  contribution to a collective work, as a part of a motion picture or
  other audiovisual work, as a sound recording, as a translation, as a
  supplementary work, as a compilation, as an instructional text, as a
  test, as answer material for a test, or as an atlas, if the parties
  expressly agree in a written instrument signed by them that the work
  shall be considered a work made for hire. For the purpose of the
  foregoing sentence, a ''supplementary work'' is a work prepared for
  publication as a secondary adjunct to a work by another author for
  the purpose of introducing, concluding, illustrating, explaining,
  revising, commenting upon, or assisting in the use of the other
  work, such as forewords, afterwords, pictorial illustrations, maps,
  charts, tables, editorial notes, musical arrangements, answer
  material for tests, bibliographies, appendixes, and indexes, and an
  ''instructional text'' is a literary, pictorial, or graphic work
  prepared for publication and with the purpose of use in systematic
  instructional activities.

(1) does not cover this case, because a contractor is, by definition,
not an employee; and (2) does not cover this case, because the
modified GCC is not a part of a motion picture or other audiovisual
work, a sound recording, a translation, a supplementary work, a
compilation, an instructional text, a test, answer material for a
test, or an atlas.

> and the return of the modified code to the government is not a
> distribution of the code.

Why is it relevant whether or not the code is a work for hire when
deciding whether giving it to the government is distributing it?

> The government turning around and giving copies to further contractors,
> however, clearly violates GCC. At the moment of transfer the code passes
> from one legal entity to another, and at that point the source code must
> be released under GPL if the recipient demands it.

The recipient does not have standing to demand it.  The copyright
owner --- in this case, the FSF --- has standing to sue for copyright
violation, and as part of their suit, they might request that the
court require the government to license the source code to the
modified version under the GPL.