Sputnik-era NSF-funded books: is this a license?

Question

In 1957, the Soviet Union launched Sputnik, which also had the unintended side effect of launching frantic attempts in the US to reform math and science education. A common pattern in these efforts was that the NSF encouraged university professors to drop their research work and spend a chunk of their lives writing textbooks. Usually there was some kind of three-way arrangement involving the NSF, the professor, and a publisher. Tax money flowed in from the NSF, and the publisher published the book. When the book came out, there was language on the copyright page stating that the materials were available to be adapted by all publishers. This was to encourage innovation and allow the materials to be freely improved by educators if the initial version didn't work well. Sometimes this public availability was after a fixed date, something like 5 years after initial publication. Some important and influential books of this kind are:

• The SMSG ("new math") books for K-12 (info, scans)
• The Berkeley Physics Course
• PSSC Physics (books and films)

I have seen varying claims online about the legal status of these materials. For example, I've seen claims that the SMSG books were immediately placed into the "public domain" so that they could be freely adapted and experimented with by various educators. However, this SMSG book has a standard copyright page, with a copyright by Yale University Press, and no notice saying that it was freely available. The 1960 edition of PSSC Physics has a standard copyright page, but a later college-level book based on it has this additional notice:

The materials taken from the original and second editions and the Advanced Topics of PSSC PHYSICS included in this text will be available to all publishers for use in English after December 31, 1970, and in translations after December 31, 1975.

The book Electricity and Magnetism by Purcell from the Berkeley Physics Course has this:

The preparation of this course was supported by a grant from the National Science Foundation to Educational Services Incorporated. In accordance with the National Science Foundation's policies concerning curriculum revision material developed under their auspices, McGraw-Hill Book Company, a division of McGraw-Hill, Inc., announces that the material in the Berkeley Physics Course, Vol. II ELECTRICITY AND MAGNETISM, which is copyrighted by Education Development Center (a successor by merger to Educational Services, Inc.) and published by McGaw-Hill Book Company in 1965, will be available for use by authors and publishers on a royalty-free basis on or after April 30, 1970. Interested parties should address inquiries to the Managing Director, Educational Development Center, 55 Chapel Street, Newton, Massachusetts, 02160.

Because the Purcell text is a classic, I did substantial work a few years ago on producing a free digital version. However, I belatedly began to wonder whether I was really on solid legal ground. I contacted EDC, which still exists but no longer owns the copyright. They sent me through a chain of contacts. It turns out that there is a third edition of the book from Cambridge University Press, and CUP is licensing the book from Purcell's sons. CUP wants to protect their commercial interest in the book and has refused to give me contact information for Purcell's sons.

Is the language in the front of these books a license, or is it only the offer to negotiate a license? Is this different from the type of modern copyleft license we see on projects such as Wikipedia, where I don't specifically need to contact the copyright holder? I suppose a license is a type of contract, and modern copyleft licenses have all the elements that are needed in order to make them legal contracts. Is some such element missing from the notices in these books?

The notice in the front of the Purcell book says, "In accordance with the National Science Foundation's policies concerning curriculum revision material developed under their auspices, [...]" This seems to imply that when these publishers took NSF money, they accepted an obligation to freely license the materials. Can they simply duck out of this obligation by selling the copyright to someone else, or is the copyright somehow encumbered by this obligation?

Answer 1

There is a subtle difference between NSF policy and enforceable obligation. The primary stick that goes with the carrot is being excluded from future funding. Current policy does not generally force material in the public domain, but it is a possibility in "exceptional circumstances". There no doubt is a paper record somewhere in D.C. indicating whether such a codicil was added to any of these grants. NSF generally does not have contracts with individuals, they have contracts with institutions who have relations (typically employer-employee) with individuals, so even if there were a policy requiring works to be put in the public domain, NSF would have to go after the institution, who would have to go after the author. Since that would conflict with longstanding NSF policy on copyright, it is unlikely that they would want to pursue such an approach.

The statement that McGraw-Hill Book Company announces that the material, which is copyrighted, will be available for use by authors and publishers on a royalty-free basis on or after April 30, 1970 is not itself a license, it is a suggestion that a license will com into existence. A present-tense declaration "this work is dedicated to the public domain effective April 30, 1970" can be interpreted as a license effective of a date certain. Similarly, "will be available to all publishers for use in English after December 31, 1970, and in translations after December 31, 1975" does not say that it is in the public domain effective of some date.

One might say that the copyright statement is simply not well written and the author really intended the books to be in the public domain as of those dates. But without compelling evidence that the book was actually released into the public domain, a court is very unlikely to abrogate a person's property rights.