[sf-lug] Obama's change.gov now using Creative Commons

Rick Moen rick at linuxmafia.com
Fri Dec 12 18:06:09 PST 2008

Quoting Larry Cafiero (larry.cafiero at gmail.com):

> Christian --
> As an attorney -- and not one of us mere mortals -- you may have more
> insight on this than anyone. But I thought I heard/read/dreamed somewhere
> that all government documents (except those which are, for whatever reason,
> considered restricted due to "National Security" or whatever) are in the
> public domain.

You're referring to title 17, chapter 105 of the United States Code (the
cumulative set of all Congressional legislation), which says, in total:

   Copyright protection under this title is not available for any work
   of the United States Government, but the United States Government is not
   precluded from receiving and holding copyrights transferred to it by
   assignment, bequest, or otherwise.

("This title" refers to Title 17, which is the USA's Copyright Act.)

The phrase "any work of the United States Government" is further
interpreted in various bits of administrative law and judicial rulings
as meaning copyright-covered works created directly by (employees of) 
any Federal department or agency in the course of employment.

BTW, "national security" concerns have no bearing on existence or
nonexistence of copyright title.

> So doesn't that make the CC license somewhat moot, even as it relates to the
> content under the President-elect's site?

First of all, Mr. Obama and his staff will not be not Federal employees
of any sort until noon of Tuesday, Jan. 20, 2009, Eastern Standard Time.
Following that time, anything created by Mr. Obama and any of his staff
who become Feds _in their scope of employment_ automatically passes
directly into the public domain.

Anything copyright-eligible creative work created by any of those people
outside the scope of their job duties, e.g., on their spare time -- or
by people _not_ employed by a Federal department or agency -- becomes
the copyrighted property of its creator.

By the way, it's true that CC was _inspired_ by open source / free
software, but one should be careful not to assume that any arbitray CC
licence is a free licence.  Most are _not_ -- by design.

CC's objective was to encourage creation of a commons of creative
non-software content (literature, songs, etc.) -- that was licenced to
be redistributed, by anyone, in perpetuity, as opposed to being lawfully
redistributed only by the author and specifically authorised distributors.
Their objectives did _not_ include (as open source / free software does)
ensuring that recipients always and everywhere had the right to modify
those works and reuse them for any purpose.

Accordingly, _most_ CC licences severely restrict those rights --
intentionally (e.g., some deny the right to modify entirely; many 
grant some rights only for non-commercial use).  Nothing wrong with
that, but it's very definitely not the same.

Applying the OSD as criterion, the current 3.0 licence revisions divide
like this:


Open source

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