the OFL-1.1 license violates 17 USC § 105

[mbutterick]

17 USC § 105 says that any work of a US government employee is not subject to copyright. The OFL-1.1 license, by contrast, depends on the assertion of copyright for its effect. Therefore, there is no way for the work of US gov’t employees to be released under OFL-1.1. (I take no position on whether the terms of OFL-1.1 have been correctly applied here, though I’m skeptical.)

[thisisdano]

Hm — where do you think we could go from here? Is there a more appropriate license that we could use, perhaps in coordination and discussion with the original creator of the face?

cc @impallari

[mbutterick]

I think public-sans is already in the public domain because it cannot be otherwise. Under that view, Mr. Impallari’s copyright has been invalidated by inverse condemnation. IIRC Mr. Impallari is a citizen of Argentina. This means that this project has also possibly violated the Buy American Act, 41 USC § 8302.

[pbhj]

The exception in 8302 (a) 2 C would appear to make it perfectly acceptable against the "Buy American Act", assuming there was no charge?

Also, Argentina is in America; why isn't it called "Buy from USA Act"?

You mention the nationality of the creator, but that Act talks about the location of manufacture.

[mbutterick]

Furthermore, by calling this font public-sans (and not, say, copyrighted-by-someone-else-sans) the US gov’t has already made an explicit representation that it is meaningfully “public”.

[pbhj]

IIRC (I'm not from USA) the gov can produce things that are "public domain" in USA, but copyright elsewhere.

Of course then anyone in USA could republish a "public domain" work as truly public domain, circumventing the gov's restricted right in other jurisdictions.

The only sensible license is "public domain", surely?

[evbarnett]

I don't believe Public Sans is in the public domain, since it is based off of Libre Franklin. It must adhere to Libre Franklin's license, and I don't think this law applies anyway because Libre Franklin was not the work of a government employee.

[sixty4k]

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.

Worth considering, here and in #31, is that this is a derivative work of Libre Franklin, which is licensed by the OFL-1.1. That license allows for modification and redistribution but not relicensing. I think that falls comfortably under holding copyrights transferred to it by assignment, bequest, or otherwise.

[tssva]

I think that falls comfortably under holding copyrights transferred to it by assignment, bequest, or otherwise.

This is incorrect . The OFL-1.1 just grants certain rights of use to the work but in no way transfers the copyright for the work to the government. The copyright is fully maintained by the original creator.

[sixty4k]

@tssva you're right. I think that might negate this. As a derivative work, the copyright is not in question.

[david-a-wheeler]

Additional work done by a federal government employee as part of that employee's official duties is not subject to copyright in the United States. However, anything from the original work retains its copyrights, and this doesn't apply outside the United States. If they are reporting the license as a whole, then OFL-1.1 is correct, and as far as I know there is no violation of 17 USC 105.

Disclaimer: I am not a lawyer (IANAL). But I suspect a real lawyer would say the same thing.

[jackjennings]

FWIW @mbutterick is a lawyer and type designer…

[tssva]

However, anything from the original work retains its copyrights, and this doesn't apply outside the United States. If they are reporting the license as a whole, then OFL-1.1 is correct, and as far as I know there is no violation of 17 USC 105.

The OFL-1.1 only allows distribution of derivative works if the derivative is itself licensed under the OFL-1.1, so if you take the view that public-sans is a combination of public domain licensed and OFL-1.1 licensed work than distribution of it is a violation of the original works OFL-1.1 license.

[mbutterick]

where do you think we could go from here? Is there a more appropriate license that we could use, perhaps in coordination and discussion with the original creator of the face?

Though I am a lawyer, I obviously cannot advise the GSA on legal matters. Nothing I’ve said in this thread is legal advice. I am simply flagging a problem with the licensing.

[gosh-darn]

where do you think we could go from here? Is there a more appropriate license that we could use, perhaps in coordination and discussion with the original creator of the face?

Though I am a lawyer, I obviously cannot advise the GSA on legal matters. Nothing I’ve said in this thread is legal advice. I am simply flagging a problem with the licensing.

As far as I can tell, you are the only lawyer in this thread; so if anyone here were to know anything about federal law, it would be you.
In your newsletter you stated that “Public Sans is an inseparable mixture of copyrighted work […] and uncopyrightable work.” It seems that the creators of this typeface, somehow, managed to design themselves into a corner; a fact that I find rather amusing.