the Attorney General's Public Records and Meetings Manual; now a University of Oregon Economics professor, Bill Harbaugh, has posted the manual online, giving the Attorney General's office a heads-up. It will be interesting to see the results.
I should note that the Copyright Act specifically provides that works of the federal government are in the public domain, and longstanding copyright law decisions say the same about state court decisions, but in principle the Copyright Act does not preclude other state agencies from owning copyrights in works that they've created (though it's possible that the fair use doctrine might authorize pretty broad copying of at least some such works). I take it that Prof. Harbaugh's argument is that the Attorney General's office shouldn't assert copyright, not that it is legally precluded by copyright law from so asserting it. And I take it that he is counting on the Attorney General's good judgment and good political sense, and not on any legal doctrine, to protect him. Jeff Mapes, a columnist at the Oregonian, reports further; thanks also to Mark Thoma for the pointer.
This does NOT preclude government contractor from holding copyrights, nor does it preclude aggregating these into a larger work as a whole which would have to be licensed in ways the contractors would approve, of course (like the SELinux patches).
I don't know what triable issues of fact might arise in any suit Kroger might bring. But I can't imagine any AG in his right mind wanting to put such an fundamentally and transparently wrongheaded suit in front of a jury.
No doubt if Kroger proceeds, plenty of mirrors will appear. Some of them will likely be unreachable by anything but extraordinary legal process, not to mention extraordinary investigation to locate the principals.
This quote, from a lawyer named James Madison, is prominently displayed right on the cover of the very public records manual the AG's office had warned me not to redistribute. So I figured I'd hire this Madison guy to defend me in court, if it came to that.
Then I learned from wikipedia that he was never actually admitted to the Bar. Oh yeah, also that he's dead. Seems like his legacy needs to be resurrected too!
I don't think that holds up. If anything the lack of copyright would force profits down to marginal levels if that ever came up.
Certainly a lot of private companies make money off the NSA's Linux patches.....
Good God, that way lies madness.
That's how it works in an economic model. In the real world, a lot of people manage to skim money off selling people information that the government makes available for free.
In theory, virtually no activity should be profitable beyond marginal levels. In practice, not so much.
No activity should be economically profitable (though it can have accounting profit), in the long run, with no barriers to entry. Not sure what you meand by "marginal levels".
That doesn't make any sense. If companies are being dishonest, then they should be prosecuted for fraud. If the gov't is ineffective in distributing the works that it produces, and a private company does a better job in providing people with these works, then there is no reason why said private company shouldn't make a reasonable profit.
How about academics at state-run universities?
Can you provide a pointer? I've never heard that states are barred from enforcing their copyrights in government documents. I may be incorrect, but I was under the impression that whether a state waived ownership was a question of individual state law and not judicial interpretation.
(1) Copyright on academic works are held by the individual profs.
(2) The NIH requires (per statute) that any research funded (in any part) by NIH funds be licensed to PubMED.
I think you're almost certainly correct with regard to government produced materials. But let me set up a hypo and I'll let you or someone else tell me how it fits into what you said.
Suppose Company X (or even person X) holds the copyright in a work, and through some set of circumstances, of all of Company A's property (asset forfeiture perhaps or as some sort of tax lien) including this "copyright."
I realize the most typical practice is simply for the government to auction such things off as quickly as possible, but what's the status of a copyright that's come into the ownership of the government?
A common controversy in this area is the fact that most local governments, if and when they adopt building or similar codes, adopt by reference the requirements of some standards body. The standards body owns the copyright to the model codes they produce, and they do not generally approve of the local government making their works freely available to the public. However, the public is subject to those codes; the code itself becomes part of the law, but neither local law nor state FOIA laws, of course, can trump the copyrights granted by federal law and international treaties. Quite the conundrum.
i'm not so sure about this. the definition of works made for hire includes works created by employees in the course of their employment. i see no statutory reason that acdemic articles, which are after all well within the scope of an academic's employment, would be exempted.
now individual institutions may choose to assign those rights back to their authors, or more likely ignore their status as works made for hire. but a blanket statement that all academics own the copyright in their academic writings is not supportable.
Oregon blogger Jack Bogdanski has written extensively on this subject (of statutes - haven't checked for the AG manual on his blog yet).
I dunno about you but I have paid private companies for all sorts of government-produced stuff, for example the FSI's language courses (which are excellent). However the beauty of the economic system is that now all that stuff is available free of charge over the internet.
That's actually pretty cool when you think about it. Corporations, like other tax payers, can use these materials as they see fit.
I am not sure. I suppose if the purpose were simply to collect debts and hence the ownership were transitory, then I don't think the status of the copyright would change since that is still within the Constitutional mandate.
My own opinion is that due notice requirements should prevent this sort of thing, but the court don't agree with me on this.
In this case SBCCI provides model building codes to local and state governments to adopt as the law in their jurisdictions. The license agreements with these political subdivisions prevent them from freely disseminating the codes to the public. They are likely available for inspection, but the only way the codes (the law) are effectively available to contractors or do-it yourselfers is to pay SBCCI for a copy.
The Veeck decision is law only in the 5th circuit, so in most of the country you have to pay SBCCI to find out what the law is.
17 USC s. 101:
I'm not aware of any exceptions for military logos. A brief Google search revealed a few pages where the Air Force Reserves were asserting a copyright, but I find no place discussing their legal right to do so.
The page numbers can't possibly be copyright. What spark of creativity could they claim was involved in numbering pages sequentially?
Though the federal constitution states that authors and (scientists? Forget the word used in it) limited exclusive rights to their own work for a limited time, a person employed for that purpose wouldn't necessarily be counted if the time he researched was compensated.
At the same time, one could even argue that the profits of a company intended to fund such research belonger to the consumer, for the higher cost of a previously purchased product could entitle them to rights.
But today, we hide the possibility for a select few to retain rights to anything. But when it comes to federally funding research for green energy, the people hardly are considered as part owners. Instead, a few wealthy people profit off of contributions made from an unwilling public.
I appreciate the advice about removing the "illegal" from my blog post. I talked with the AG's spokeperson today, for a long time. He is not very happy about all the publicity this has garnered, to put it mildly, and I am very sure he and his boss are really hoping not to see any mention of it on volokh or slashdot for a long, long time.
While he didn't come out and say that Attorney General Kroger had caved on this issue, he didn't reiterate any of the previous warnings, either. So, I think I'm OK, and I guess I'll leave that illegal bit up!
Bill Harbaugh
Seems to me that the AG is violating Oregon's Sunshine law by asserting copyright to restrict the free flow of information about the "conduct of the public's business".
L. Ray Patterson and Craig Joyce, in MONOPOLIZING THE LAW: THE SCOPE OF COPYRIGHT PROTECTION FOR LAW REPORTS AND STATUTORY COMPILATIONS, UCLA L. Rev. 719,722 (1989), wrote the following:
Wheaton v. Peters, 7 in 1834. Wheaton held that opinions of the Court are not copyrightable, and that holding remains the law. 8 Subsequent cases 9 and the present copyright act 10 reinforce and expand upon the point: the law, whether in court opinions or statutes, cannot be reduced to property through copyright, whether by individuals or by the government itself.
n7. 33 U.S. (8 Pet.) 591 (1834). For the background to the case, see Joyce, The Rise of the Supreme Court Reporter: An Institutional Perspective on Marshall Court Ascendancy, 83 MICH. L. REV. 1291 (1985), and Joyce, Wheaton v. Peters: The Untold Story of the Early Reporters, 1985 SUP. C. HIST. SOC. Y.B. 34. Subsequent references are to the first-specified article.
Compilations of facts are not protected by copyright.
Now, if I publish The 100 Greatest Supreme Court Cases Ever then presumably that would be subject to copyright in selection, ordering, etc. But that is a different thing and I don't think that the mere cases themselves would be protected if copied out of the book. Instead only the selection, commentary if applicable, and ordering would be.
Also see Hyperlaw v. West Publishing (2nd Circuit 1993)
In Microdecisions v. Skinner, a 2004 case after my article was published, a Florida court denied copyright for GIS maps, saying public records law overrides an agency's ability to claim copyright unless the legislature has expressly authorized an exemption.
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