Works of US government employees are in the public domain. Only a small subset of the cables are marked secret, so it would seem that at the least almost all of the cables are now copyright free and can be redistributed without any chance of prosecution by those doing the distributing. Is this true, and are you aware of any laws that would give the secret cables a different status?
“Copyright” and “classified” are by no means interchangeable. One involves protecting intellectual property; the other is about protecting your (and my) ass. Some copyrights are classified because they relate to, say, nuclear weaponry. But that’s an exception to the rule.
Divulging national security information is often likely to get people dead. Impinging on copyright is less likely to get people dead.
Really? This doesn’t make sense: Copyright only protects a specific expression of an idea, whereas the whole point of classifying something is to keep the entire idea secret. This leads to some knowledge being ‘born secret’, meaning it is restricted from the moment it is known regardless of who figures it out. (This is a law on parlous footing, however; the government’s dropped at least one case where it would have gone under judicial review, implying they thought there was a good chance of the Supreme Court overturning the law and invalidating the whole concept.)
There are, however, secret patents, relating to inventions someone thought might harm the national security were they to be widely known.
However, all this is a tangent: Works by the U.S. Government are public domain in general, and while I’ve never seen that applied to cables it also doesn’t appear that they’d fall into any category where the government (or anyone else) asserts copyright.
(snipped)
Check out theExecutive Order.
I skimmed through the entire Executive Order. I may have missed it, but I did not a see a word in there about the status of a document made public without proper authorization or declassification. Nor did I see any sanctions attached to any non-governmental figure.
There is historic precedence in the Pentagon Papers. Many of those were classified Top Secret, which none of the current cables are. Yet people published books containing the Pentagon Papers for sale at general bookstores.
They always were in the public domain. Copyright does not enter into it. Although there have been some attempts in the past to retroactively make secret material that had entered into the public record, I don’t believe that any sanctions have ever held up.
IANAL. The government wants to come down hard on Wikileaks to make an example of them, and their lawyers will find some excuse to make a case. My opinion is that anything that is already in public is out the barn door for everybody else.
Because these documents were created by government employees in the course of their official duties, they are not subject to copyright within the US. However, the government can claim a copyright on these documents in other countries.
But as Giant Rat and other have said, the issue with distributing these docs is whether or not they are classified, not whether they are subject to copyright.
The fact that they have been publicly disclosed by one person does not mean that they are no longer considered classified, or that other people can distribute them without being criminally liable.
That is the issue we’re arguing about.
I didn’t see anything in the Executive order that specifically stated this. Did I miss it? If not, what authority are you citing?
And are you saying that the New York Times is criminally liable?
According to a Commerce Dept. memo:
As was stated, classified information remains classified even if it was released without authorization. The Espionage Act would likely still prohibit certain uses of the documents, like compiling them and mailing them to the nearest Chinese consulate.
Ok, but only a small percentage of the documents were classified, so the rest are still in the public domain, right?
PS: I haven’t heard this as a “rumor” - I came up with the idea on my own =)
I’m pretty sure that all of the cables, including the classified ones, are in the public domain. This is because most works created by the federal government are not under copyright, because long ago, that’s what they decided to do. Therefore, the federal government cannot sue anyone (for money) who publishes the documents for copyright infringement. There is no copyright infringement because there is no copyright, and not having a copyright means that the documents are in the public domain. Public domain does not mean that the documents are available to the public. It means that anyone can try to make money off them.
The information is still classified, however, and this means that it is possible for the government to try anyone (for prison time) who has unauthorized access to the cables. The fact that the public has access to this information has no bearing on its official classification status. The information is still officially secret, even though everyone can read it.
I hope that clarifies things.
Again, every one of them started in the public domain, are in the public domain now, and will stay in the public domain in the future.
The only question is whether you are legally safe from prosecution if you reprinted them. This has nothing to do with public domain.
Yes, that Executive Order says that classified information is not automatically declassified by mere disclosure. And so what? Why not quote from a different section of that same document?
That pretty much covers every cable that’s been published.
C’mon. Really. How many documents could stay classified ever if those criteria were brought to bear on them? That section would be a joke if bureaucrats had a sense of humor. (They don’t, which explains the email in Duckster’s link. Wow. The government doesn’t want its employees passing the stuff around. This is to be taken seriously by you and me and him and her?) It’s also a joke that anyone is quoting a document about the proper procedures for the swift declassification of documents that makes no mention of leaks or leakers for this purpose. You didn’t bother to read the pdf, did you?
Has anybody anywhere outside the government been threatened by the government for the reprinting or reporting or rescanning of any leaked document? I haven’t heard of it. I repeat, IANAL. But there is solid precedent against the prosecution of anyone and the lack of any current attempt or even warning of a possible prosecution against any outsider who is not either at Wikileaks or an original leaker. None.
The Pentagon Papers are still in print. When Amazon pulls them I’d be concerned. But not until.
Except the part about most of the documents not being classified.
What exactly constitutes a “work” of the federal government? Clearly a phamlet on prevention of the spread of HIV or how to survive a nuclear bomb attack would be “work,” but is a cable a work? Is an email a work? Would a love email between two employees in a federal department be a federal work? Or is it works just related directly to governmental operations? Or what?
Does anyone know if the term “works” was ever defined?
I have a clearance, and we received a memo specifically telling us that everything classified in the WikiLeaks incident is still classified and we are forbidden to discuss it, period.
That is, any hypothetical material in the hypothetical leak. [Sgt. Schultz]I know Nuthink![/Sgt. Schultz]
Link to the Washington Post item, which includes the OMB memo specifying that Federal employees and contractors are not authorized to view the leaked documents. They are allowed to read newspapers such as the NYTimes discussion of the documents, but not the original classified documents, without the express direction of relevant agency heads.
Anyone having previously accessed the documents prior to the included guidance is directed to report the violation to their security office.
Dammit, I used to have a clearance to access materials above the leaked documents… and if I go back into work for the gov, well, that polygraph might very well suck…
A few snips in here to avoid over-quoting.
They are not in the public domain (link), according to DON. Sample passage:
A. NOT CONFIRM OR DENY THE EXISTENCE OF POTENTIALLY CLASSIFIED NSI
IN THE PUBLIC DOMAIN, AND REPORT THE INCIDENT PER REF A, CHAPTER 12.
As Duckster notes, Executive Order 13526 is probably a better source. NISPOM section 4-107 also specifies that even declassification does not equal approval for public disclosure.
Millions of them…
The Pentagon Papers resulted in several legal actions by the government. The fact that there wasn’t ultimately a conviction doesn’t make their continued publication legal and, according to Wikipedia, the report remains classified, although widely published. My guess would be that the content, since it disclosed intent by the administration to deceive the public and (more importantly) Congress, has a legitimate First Amendment-related value. Identifying military and diplomat sources, methods, and actions are, frankly none of the public’s f’ing business as long as the actors involved are performing their duties in good faith.
I worked for a state government and there were different categories for our documents. Some were considered to be public records and some were not.
One big exception was that discussions of proposals were generally not considered public information. The idea, as I understood it, was that because these were only proposals they did not have an effect on the public unless they became actual policies. And it was felt that the possibility that hypothetical proposals might become subject to public view could stifle the introduction of new ideas.
Which is irrelevant, because only those with the authority to classify or declassify documents get to decide whether something is classified in order to prevent embarrassment or to protect foreign government information. In other words, the EO uses the term “embarrassment” in a different sense: not “OMG the USG is so embarrassed that we think President Whatshisname is not very smart,” but more like “Secretary Smith got drunk last night and smashed up his car, we can’t let the press get wind of this.”
I’m not sure I’m fully following you, but again, just because something has been leaked doesn’t mean it has been declassified. And yes, I think most folks I work with would take the injunction pretty seriously. That’s the main difference between a trustworthy person with a security clearance and someone who is unworthy of a security clearance. Most people whose jobs depend on keeping a clearance will probably follow the rules.
Let’s look closely at that document, especially the way the term “public domain” is being used.
It’s clear from this passage and others I’ll skip quoting that the writer is using “public domain” as meaning “appearing in the public arena” or “escaped into the wild.”
However, that’s a wholly different meaning than the technical meaning of public domain as used in copyright law. There public domain means “not subject to copyright” and “free to disseminate”.
Whether a piece of material is published on the front page of a newspaper or buried in a secret vault has no bearing on its copyright status. In terms of copyright, the cables were always public domain from the beginning. Nothing that has happened since has changed that an iota.
No it doesn’t. But as I stated earlier, nothing in the Executive Order says anything specific about this situation.
Of course government agencies are telling their people not to do anything. When Wikileaks puts out the bank documents that it promised, the bank will send out the same directives to its employees. As I also stated earlier, government control over its own employees does not imply that any actions will be taken against civilians. Why? Because none ever has.
The report remains classified although widely published? Is there a court in this country that wouldn’t laugh a prosecution out of existence?
Frankly, I don’t care what you think about the value of the leaks. And it’s obvious you are using that opinion to override sense as to the legalities. The legal question is whether the government will ever prosecute non-government figures for using materials that have been publicly disseminated. My answer is that it never has, even for actual top secret document leaks.
That covers Ravenman’s objections as well. The government can and probably will take actions against its employees that it never has against non-employees. But that’s not what we’re arguing. I’m saying that non-employees will not be subject to any prosecution. Amazon was hosting Wikileaks in the U.S. Will it ever face prosecution? No. Will the New York Times face prosecution? No. Will the news networks face prosecution? No. Will you face prosecution if you reprint something from them on your website? No.
If you disagree, please give me an example since the Pentagon Papers of the government prosecuting a non-involved actor for the re-dissemination of leaked documents.