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The license attached to the script/software reads as follows:

“Software code created by U.S. Government employees is not subject to copyright in the United States(17 U.S.C. §105). The United States/Department of Commerce reserve all rights to seek and obtain copyright protection in countries other than the United States for Software authored in its entirety by the Department of Commerce. To this end, the Department of Commerce hereby grants to Recipient a royalty-free, nonexclusive license to use, copy, and create derivative works of the Software outside of the United States.”

A few questions:

  1. Is this "open-source" or "pseudo-open-source"(i.e., not technically open-source, but functionally operates the same) given the license statement and the public availability of code?

  2. Does this mean for U.S. citizens, this software essentially contains no copyright and is free and open to use?

    • Is this partially due to the freedom of information act? This sub-bullet is not essential and is more of a gee-whiz question?

  3. Regardless of copyright or lack thereof, what can I do with this and ethically what do I need to do or should do to give credit to the authors of the software. The U.S. Government is technically the authors if I am reading it write, but the code is associated with a peer-review paper by government employees; do I cite the peer-review article?

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It is open source in that it meets the Open Source Definition: it allows free redistribution and it allows derived works, without any restrictions which would violate any of the other clauses. (For avoidance of doubt, the Open Source Definition is how this Stack Exchange site defines "open source"; other groups may use other definitions).

Does this mean for U.S. citizens, this software essentially contains no copyright and is free and open to use?

No (but yes): it means that within the jurisdiction of the United States, the software contains no copyright. A U.S. citizen in the United Kingdom would still have to obey UK law, and the U.S. government could in theory obtain copyright for the work in the UK, at which point it could not be freely copied in the UK. However, the separate grant makes that distinction largely irrelevant.

Is this partially due to the freedom of information act?

No, it is due An Act for the general revision of the Copyright Law from 1976. (Actually, it probably predates that but you'd need some legal scholars to dig into the history of Title 17 of the U.S. Code)

Regardless of copyright or lack thereof, what can I do with this

Pretty much anything.

ethically what do I need to do or should do to give credit to the authors of the software

That's a question which is going to be dependent on your field. In a commercial setting, no-one is going to worry if you don't cite every piece of software you use when doing your work. In an academic setting, the standards are very different.

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    The license says you're allowed to use the software, copy it, and make derivative works, but it doesn't say anything about what you can do with those derivative works once you've made them.
    – user2357112
    May 29, 2022 at 8:17
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    Honestly, it sounds like the same kind of amateur lawyering that causes problems for things like the Unlicense. Here's an excellent analysis of the CC0 from a German perspective which details some caveats it successfully addresses that people outside British-derived copyright paradigms may not be aware of.
    – ssokolow
    May 29, 2022 at 17:31
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    @Philip Kendall: I would be interested where in the license language you read "it allows free redistribution" outside USA. I see the word 'copy', do you think that really implies free redistribution?
    – Martin_in_AUT
    May 30, 2022 at 11:02
  • I'm not sure if this clears anything up, but here is an additional resource I found in relation to the license: github.com/CommerceGov/Policies-and-Guidance/blob/master/…
    – Devon Oliver
    May 31, 2022 at 12:59
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The license language is only clear in the United States of America, where no copyright applies.

Outside of USA the situation is unclear, because many aspects are not covered:

a) the rights granted by the Department of Commerce are not stated to be perpetual and irrevocable.

b) the license language does not provide the rights for the recipient to re-distribute the software or derivative works. There is also no sub-licensing right.

c) The license is applicable to "Software code created by U.S. Government employees", but the rights granted outside of USA seem to only apply to "Software authored in its entirety by the Department of Commerce."

Am I the only one who sees a gap?

If the software has first been published on a server in USA, will then the First Sale Doctrine apply and would that even have an impact on international distributions?

Would it be safe to take the code, create a derivative work (in the US), put that derivative work under MIT license and distribute it internationally? Probably yes, but I am not really sure.

I do not think this is unequivocal Open Source. I think it needs further clarification.

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    I'm not sure if this clears anything up, but here is an additional resource I found in relation to the license: github.com/CommerceGov/Policies-and-Guidance/blob/master/…
    – Devon Oliver
    May 31, 2022 at 12:58
  • This seems to be the standard language on NOAA GitHub Projects. Maybe they left it intentionally open-ended to work in their favor in case of an unforeseen use that is not in their best interest.
    – Devon Oliver
    May 31, 2022 at 13:03
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    @DevonOliver Thx for this link. It adds some context, but does not add any clarification w.r.t. the license language.
    – Martin_in_AUT
    May 31, 2022 at 13:26

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