Lessig on the Future of the Public Domain

hank writes "The O'Reilly Network is running an interview with Lawrence Lessig -- author of "Code and Other Laws of Cyberspace" and "The Future of Ideas" -- on the future of the public domain, reaction to his calls to arms, and his next venture, Creative Commons, "machinery to build licenses that allow people to mark their content as available in any number of ways to the public domain.""

Comments

Re:Is it *that* bad?

[Seth Finkelstein]

See the chart of:

The Growth Rate of the Public Domain

This chart is a visual representation of amici's understanding of the decline of the growth of public domain as a result of repeated copyright term extensions.

Sig: What Happened To The Censorware Project (censorware.org)

Re:The Eldred case...

[Seth Finkelstein]

I think the best argument they have going for them is that extending the copyright of already created works cannot possibly meet the constitutional requirement that copyright law "promote the progress of science and useful arts".

I'm not a lawyer. But, careful, that argument has actually lost (by 2-1) in the Appeals Decision
(emphasis added)

Such guidance as the Supreme Court has given further confirms us in this view of the matter. The Court has made plain that the same Clause permits the Congress to amplify the terms of an existing patent. As early as 1843 it established that the status of a particular invention and its protections must depend on the law as it stood at the emanation of the patent, together with such changes as have been since made; for though they may be retrospective in their operation, that is not a sound objection to their validity; the powers of Congress to legislate upon the subject of patents is plenary by the terms of the Constitution, and as there are no restraints on its exercise, there can be no limitation of their right to modify them at their pleasure, so that they do not take away the rights of property in existing patents.

McClurg v. Kingsland, 42 U.S. 202, 206.

Within the realm of copyright, the Court has to the present era been similarly deferential to the judgment of the Congress. "As the text of the Constitution makes plain, it is Congress that has been assigned the task of defining the scope of the limited monopoly that should be granted to authors or to inventors in order to give the appropriate public access to their work product;" that "task involves a difficult balance between [competing interests]" as reflected in the frequent modifications of the relevant statutes. ...

Sig: What Happened To The Censorware Project (censorware.org)

Re:Why not go PD?

[reflective recursion]

Copyrighting free software is done for licensing purposes; to claim legal ownership of software so enforcement of the license is possible. It can discourage the use, but that depends on the type of license the software is under. The GPL, for example, discourages proprietary shops from using it in a number of ways. But it also guarantees that the software licensed under it must remain free (for as long as the software is in use regardless if the public still has a copy). Public domain has no such guarantee. If a public domain software package gets incorporated into a proprietary package, the source code may completely disappear from the public at some point in time never to be seen again. Copyright also allows people to gain credit for their work. This is a big motivating factor in the open-source world, IMO. A license such as BSD is mostly a "credit" license. A while back you had to preserve the "Berkeley message" in any advertising material for BSD-licensed software. Today the BSD license merely retains copyright and disclaims any warranty. Other than that, it is equal to public domain software.

As for being sued from someone copyrighting public domain software, this can't happen. IANAL, of course, but public domain software is not owned by anyone. There can be no original author. If the person who created the software is sued by another who copyrights the software, he can simply deny _ownership_ of the software. There is no basis for suing and no legal action which could be taken. Ownership != creator. The only real reason to copyright free software is for 1) credit or 2) to force freedom (GNU's definition of freedom, which some people would claim is a limited definition of course).

Re:Why not go PD?

[reflective recursion]

Well.. software can be written and released (distributed) without copyright claim. Occasionally people will write "public domain" in the source code or documentation, to make it clear that it comes without a license or copyright and may be used in any manner the finder of the software wishes.

int main() {
printf("hello public domain!");
return 0;}

This bit of code here is public domain. I do not have to explicitly tell you it is public domain though. The public domain is anything which has no ownership (i.e. the air). If you are looking for examples search for "code snippets" via google. You can find short things like hash table code, etc. In some cases the source code actually says "public domain" in it.

Hopefully I answered your question, but perhaps I'm missing what you are asking..