His assumption that these works must be public domain is questionable. It is true that US government works are generally not subject to copyright in the US, but that is when they are works of government employees producing the works within the scope of their employment.
There are two big limitations on this. First, if the government work incorporates outside copyrighted work, only the parts authored by the government employee operating within the scope of his employment are public domain.
Second, this only applies to government employees. It does NOT apply to contractors. What happens with copyright of works produced by contractors under a government contract is determined by the terms of the contract.
The Curiosity project is largely run at JPL. JPL is managed for NASA by Caltech. Almost all JPL employees are neither government employees nor government contractors. They are Caltech employees.
To figure out the copyright status of works authored by JPL employees, we'd need to look at their employment contract with Caltech, and with Caltech's contract with NASA.
> The Curiosity project is largely run at JPL. JPL is managed for NASA by Caltech. Almost all JPL employees are neither government employees nor government contractors. They are Caltech employees.
Somewhat tangential to your main point (because, as you correctly note, only works by government employees within the scope of employment are categorically not subject to copyright), the employees are employees of a firm contracting with the government and working on that contract; that's the usual meaning of "government contractors". So its a non-standard use of terminology to say that they aren't government contractors.
I don't think it's standard belief that anyone funded by an NSF grant is a government contractor. The rights to work done in a university setting with NSF support are not transferred to the government; copyrights generally remain with the authors and patents are governed by employer/employee IP agreements.
JPL is not operated under an NSF grant, or any other grant. This isn't NASA being a patron, it's NASA paying CalTech for its services to NASA. CalTech operates JPL under contract with NASA, according to NASA's directions. NASA even has its own staff on-site overseeing the work. This is a business relationship, established under 48 CFR 35.017, part of the Federal Acquisition Regulations:
I can answer your last question. Publications that have a JPL main author go through an approval process in which copyright is retained by the Government.
Back in the old days, JPL's lawyers used to intercede directly when, say, IEEE said you needed to release copyright to IEEE in order to get your paper published. (You have to savor those moments when the lawyers work in your favor.)
That said, as pointed out elsewhere, most of the papers did not have JPL first authors, and their copyright status will be less clear. Even the project scientist, John Grotzinger, is not officially JPL (he's Caltech):
If copyright was "retained by the Government", it's OK to put the paper content up on a public web site. But I don't think anyone is actively doing so, e.g., for all such NASA work.
>Even the project scientist, John Grotzinger, is not officially JPL (he's Caltech):
Grotzinger and any other scientists, postdocs, engineers, and other collaboration members are going to be working under their own grants; almost always funded by a gov't agency. Caltech, incidentally will be taking 40%-60% of those funds as rent (overhead).
In the end, its the publishers choice to argue in court that tax funded space research are not in the public domain. That can backfire quite heavily, and create a precedent for other similar articles.
Second is mens rea. A "reasonable compliance upon an official statement of law, afterward determined to be invalid or erroneous" does not constitute a criminal act.
Also, the journal publisher definitely owns the page layout, and can potentially claim copyright to the final text, since its editors contributed to it during the review process.
The publisher "owns" the layout only for the creative expression within the page layout. There's not likely to be much copyrightable expression within a page layout. And infringement of that expression by republishing the article is likely to meet the criteria for fair use.
Editorial contributions are also unlikely to rise to the measure of a separately copyrightable work. In the case of scientific articles, joint authorship between contributing scientists is common, but the editors of the journal are never (rarely?) cited as authors. Occasionally, a reviewer will make substantive contributions to the science and join as a co-author.
It seems pretty safe to say that if the editor is not listed as a co-author of the paper, neither the author(s) nor the editor(s) consider it a "joint work".
I don't know enough about the relevant case law to tell you for certain that the layout is copyrightable, but my gut feeling is that it is, since that bar is pretty low and copying the publisher's PDF seems kind of analogous to copying a website's HTML. Fair use may not be applicable here, since even though the layout is a small proportion of the total work, it has value independent of the text: People might spend money (or persuade their university to spend money) to buy the publisher's PDF even if the manuscript were available for free. Given your link I agree that the review process is unlikely to give the publisher any claim to the text itself.
I do know that most author agreements for non-open access journals allow authors to publish the manuscript on their personal website and in repositories (sometimes pre-review, sometimes post-review), but most do not allow authors to publish the publisher's PDF, which suggests that the publishers believe they have some kind of ownership over the latter. (In practice many people post the publisher's PDF articles on their websites and no one complains, although repositories like PubMed Central contain only manuscripts from these journals.)
The AAAS author agreement actually explicitly allows authors to legally publish the peer reviewed manuscript on their websites as soon as it is published, which raises the question of why the authors of these studies didn't just do that.
Besides all that, he is not dealing with the collected data itself. But with analysis from non-government-employees, done on that data.
If it is the data, or those people had access to things that are not public yet, then all this discussion is moot and he is right. I'd even sue them for my 2.5 for each article.
There are two big limitations on this. First, if the government work incorporates outside copyrighted work, only the parts authored by the government employee operating within the scope of his employment are public domain.
Second, this only applies to government employees. It does NOT apply to contractors. What happens with copyright of works produced by contractors under a government contract is determined by the terms of the contract.
The Curiosity project is largely run at JPL. JPL is managed for NASA by Caltech. Almost all JPL employees are neither government employees nor government contractors. They are Caltech employees.
To figure out the copyright status of works authored by JPL employees, we'd need to look at their employment contract with Caltech, and with Caltech's contract with NASA.