What Is Public Domain?

whitefox writes: "The Seattle Times has an interesting article in today's edition on what is public domain. After sharing the experience one software writer had with businesses and people shying away from BitTorrent because they didn't understand the concept of 'public domain,' they take the reader on a tour of how public domain is being defined by groups such as Creative Commons and to the battle of copyright-extensions in Eldred v. Ashcroft."

Comments

Part of copyright should be the right to not

[Anonymous Coward]

It's really that simple. A copyright holder should have the right to completely remove the copyright from their creation, and thus allow others to use it completely and freely without worry about any sort of licensing issues.

Re:Part of copyright should be the right to not

[einhverfr]

They do.

However, public domain is a larger issue than that, and a very important one. Copyright law was originally drafted for the express purpose of enhancing the public domain, not destroying it, as recent laws have done.

Re:Part of copyright should be the right to not

[lynx_user_abroad]

An AC posted:

A copyright holder should have the right to completely remove the copyright from their creation, and thus allow others to use it completely and freely without worry about any sort of licensing issues.

...to which einhverfr offers a seemingly obvious, yet deviously incorrect reply of:

They do.

But this is not the case. Consider the following...

I have created a work, and I am the copyright holder. I have published this work as a CSS protected DVD. Now I wish to completely relinquish my copyrights to this work and make the work freely available for one and all to use.

As the copyright holder, I have the exclusive right to decide who can copy [1] my work. I can grant you explicit permission to make a copy [1] of that DVD, or by placing my work into the public domain, I can allow everyone to copy [1] my work. What I cannot do is grant you or anyone the permission to access my work who is not already licensed to do so by the DVD Copy Control Association. And if DVDCCA is unwilling [2] or unable [3] to grant such a license, the right to speak [1] my work becomes abridged [4] through a law [5] enacted by Congress.

So the technical answer is "No, I cannot "allow others to use it completely and freely without worry about any sort of licensing issues."

This is a terrible tangled web we are weaving ourselves into. How many of your copyrighted works would be locked forever on your hard drive if Microsoft revoked your license to access those files?

1. [1] publish, create a derivative of, or generally
2. express

1. [2] because you haven't offered them enough money, or because they don't like the content of the DVD I've published.

1. [3] because they've gone out of business.

1. [4] c.f. First Amendment to the Constitution of the United States

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

1. [5] DMCA

Re:Part of copyright should be the right to not

[einhverfr]

Sorry, that does not prevent you, assuming you still own the copyright from releasing it on another uncontrolled media.

Re:Part of copyright should be the right to not

[Royster]

You can relinquish copyright by executing a legal document. Ironically, in the era of automatic protection of works, you have to explicitly do something if you *don't* want protection.

If you have used a means of publishing as tied up in licensing issues as CSS protected DVDs, (DVDs without CSS can indeed be made and used) then you really can't complain that people can't use it.

You could just as easily have published your work on hollerinth cards and no one would be able to read it either.

Re:Part of copyright should be the right to not

[einhverfr]

How else do you interpret the "limited time" clause in article 1, section 8 of the US constitution? Also, this is often at the heart a large number of court cases involving both copyright and patent law because the limited time clause applies to both.

Re:Part of copyright should be the right to not

[einhverfr]

Not sure if I agree with you, but I think you have a point. The real problems are: Writings writen explicetly for a corporation would be hard to protect, and corporations have many of the rights of persons (but not natural persons).

I think a better means would be to restrict protections to entities other than natural persons, but still allow them to exist in a more limited form timewise. If the work is not readily available to the public, and the work was purchased (rather than a work for hire), then the copyright should revert to the original author. If it is work for hire, then the work should be considered unprotected at that point, IMO.

Re:Part of copyright should be the right to not

[SirSlud]

This absolutely is true. Copyright law was enacted to force works back INTO the public domain, because authorities in the 1600's were catching the whiff of power that pro free-market, pro-capitalism economists around the 1500s/1600s 'he who stakes claim first owns' ideology. (Such as public land could become your land if you claimed it, because by claiming it, you could make the weak argument that you were adding value to the land in administering and maintaining it.)

Authorities were doing all they could to grant monopolies in publishing to the successful printers of the time, inpart thanks to The Licensing Act in 1662. So, in 1710, copyright law finally forced a limited ownership term on creative works. It's worth noting that times of british history subject to the least amount of market regulation (and copyright law is a form of market regulation, because it prevents monopolies on creative works, polluting the idea of 'right to private property' required to make the free-market work and prevent looting and group action with respect to private property) saw the rise of the most wealth disparities and social turbulance. It should be obvious that those in power held a significant advantage in the race claim ownership to most new developments and unclaimed land at the time, so naturally, authorship became one such commodity that the ruling class sought to own. If power corrupts abolutely, then we can always assume that the ruling body will always attempt to legislate in favour of the most ecomically abled and power supporters in the market - so it should be obvious that you need laws that counter-act that force and keep participants in a 'free market' from gainining an insurmountable lead in the race to economy of scale and a monopoly on visibility within the market place. One might suggest that we just make a law that disallows ALL forms of legislation such as the Licensing Act. Unfortunaetly, since laws that you could jusitfy as not being related to market relgation _can_ affect the balance of power within a market, you'll always need laws to maintain the balance and keep people believing and participating in that market.

For a brief rundown, here: http://arl.cni.org/info/frn/copy/timeline.html

Or googlize "Copyright law history". Learn.

Re:Part of copyright should be the right to not

[lynx_user_abroad]

You misunderstand. If I'm the copyright holder, I own the copyright to the work and all of it's derivatives. I still own the copyright to every derivative even if the only derivative left in existance is in your posession. I can't prevent you from selling it (first sale doctrine) but I can prevent you from publishing it. For example, I can claim copyright ownership of a work (and enforce my right to prevent further derivatives) even if I only made one and I gave it to you.

Should my ability to relinquish my rights to a work be contingent on my keeping the original, or being able to recreate the derivative?

If you bought a copy of my DVD, I have the right to prevent you from making copies of that DVD. CSS assists me in protecting my rights for as long as I choose to enforce them. But CSS does not provide for the possibility that you might be authorized to make a copy. That's not a fault of CSS; CSS is under no obligation to offer that feature. But the law (DMCA) effectively prevents you from using other means (such as DeCSS) to create a derivative you're entitled to create.

If this were the only remaining copy in existance, and you wanted to assist me in publishing additional copies, my right to speak my own words would be infringed.

Some public domain charts

[tiltowait]

When works pass into the public domain

Growth rate of the public domain

Not whoring, at 50, yadda yadda, just thought this may be useful

MPAA definition of public domain.

[www.sorehands.com]

Anything we want to use is public domain. Anything that that MPAA members make never become public domain.

I wonder when the studios have filed a copyright on a movie, did they list the works that it was based on? If not, maybe some of the movie copyrights can be invalidated -- don't you love irony?

Re:MPAA definition of public domain.

[(void*)]

If I make a movie about a great story in space where some guy has the ability to use "The power" he ends up doing battle with someone named "Dark Power" who, it turns out, is the first guys father, I'm pretty sure I'm in a mountain of trouble.

You mean like this? Parodies are acceptable.

Re:MPAA definition of public domain.

[(void*)]

You should look at India's Bollywood then. Amazingly derivative, yet not illegal. Wait - why look at Bollywood when there's American sit coms?

turf wars

[YanceyAI]

"The Internet, once lauded as a frontier of freedom and a place for innovation to flourish, has become a battleground in an emerging war over who should own vast swaths of information and the next good idea." This is a nice summary, though I think it oversimplifies the kind of stuff we see from MS, ADTI, MCAA and RIAA.

Also, am I crazy or does BitTorrent sound very promising:

"With BitTorrent, clients automatically mirror files they download, making the publisher's burden almost nothing."

But won't this technology really push cable companies to penalize their customers for downloads?

Re:turf wars

[Nindalf]

Well, that's the usual dubious transmission cost benefit of the P2P distribution model: the pricing is based on standard practices, so let's screw the providers by deliberately choosing unanticipated uses. It's a dishonest, short term strategy that hurts the people you're relying on for service and discourages others from taking their place.

BitTorrent is also fundamentally user-hostile. By default, the user doesn't want to spend his bandwidth mirroring stuff for random strangers. You're basically relying on the program's ability to subvert the user's system into the service of the content provider and programmer; it breaks down if the users use compatible software which serves only their own interests.

I don't think it's a worthwhile project.

How is this difficult?

[Hygelac]

I must be asleep today, but what is so difficult about defining Public Domain? It has to be the simplest form of copy(right|left|middle) there is. The article seemed to bounce all over the place trying to make the issue confusing, but I'm confused about the confusion. ???

Re:How is this difficult?

[scott1853]

Me too. Maybe it's just me, but if you have a problem with public domain because you can't figure out what it means, then maybe you're too stupid to use it, and people really shouldn't care if you do or don't.

Is there anything wrong with accepting that sometimes people are too stupid to do/understand something? Should anybody really waste time trying to educate them?

You can't abandon cars or real property

[coyote-san]

Why does he think you can put code into the public domain?

You can't abandon a car, you'll eventually be tracked down and made to pay for proper disposal. Same thing with real property - you will be tracked down and hit with cleanup fees for any toxic wastes you left behind.

Is software really any different? Think about it - most software is of no lasting consequence, but some of it can cause a lot of damage (Microsoft Outlook Express, Microsoft IIS, others) before the producer may be tempted to just abandon it and (hopefully) all associated liabilities.

I know we usually compare source code to books, but as some Federal judges like to point out (while denying it the full protection of the First Amendment) it also has an active component. A cookbook can be put into the public domain, but a cookbook doesn't create a fire or health hazard as it attempts to prepare the meals it describes.

Maybe the people uncomfortable with truly public domain software are aware of something that we're missing....

Re:You can't abandon cars or real property

[miked50]

A cookbook can be put into the public domain, but a cookbook doesn't create a fire or health hazard as it attempts to prepare the meals it describes.


Neither does sourcecode. Someone needs to execute it. Just as somone needs to execute the action of lighting a match/stove/house on fire. Yes bad things can happen, but don't blame the cookbook/sourcecode if you're not careful. It's about time users take responsibility for some of their actions. e.g. Burn down the house while cooking, it's your fault. Send a million viruses because you didn't install anti-virus/used MS Outlook, it's still your fault.

Re:You can't abandon cars or real property

[SanLouBlues]

If you own a forest, somebody wanders into it, gets lost and dies is it your fault?
If I right a bs malloc library that occasionally wipes boot sectors and don't force it upon others is it my fault?
And if I abandon my car in my backyard (yes I have a broken down car in my backyard, yes front yards are different) I will not be forced to dispose of it. If I abandon it on a highway I'm imposing upon the owner of the highway. If I give out information I impose upon nobody. That's why apocalyptic visionaries can roam the streets with foreboding sandwich-boards, but yelling fire in a theatre is illegal. Offering vs. forcing.

Re:You can't abandon cars or real property

[Bouncings]

To dispose of a car or a house, you have to fire up big machinery, compress the car, buldoze the house, and recycle the raw materials. To dispose of information, you hit the delete button and save yourself $0.25 in storage space.

That's why.

Re:You can't abandon cars or real property

[startled]

"You can't abandon a car, you'll eventually be tracked down and made to pay for proper disposal. Same thing with real property - you will be tracked down and hit with cleanup fees for any toxic wastes you left behind."

Yes, but I won't be hit with disposal fees if I park my car in my garage. If I leave it in the middle of the street, I will-- but guess what, I don't own the street, and nobody told me I could leave it there indefinitely. If I left the car in some guy's driveway without asking him, he'd have it towed. If I ask my friend if I can leave my car in his garage indefinitely, and he says yes and I do so, that's entirely permissable (and I would be quite shocked if someone tracked me down for disposal fees!).

Similarly, if I break into some guy's server and start offering my source code, he's going to be understandably pissed, and I'll probably be prosecuted. But if I put it up on my server, or someone else's server with permission, that's perfectly fine.

We're quite fucked if it becomes illegal to make source code freely available. If you offer a beginner's C++ tutorial on your site, do you need to have people accept a EULA and/or pay you money if they want to see the "Hello, world" example?

Re:You can't abandon cars or real property

[curunir]

Your analogy to cars isn't quite right...we're talking about the creator of the software not the end user. When a car is abandoned, they go after the owner of the car, not the manufacturer. Toyota has no liability for one of their cars that becomes abandoned. The sofware author is the car manufacturer in your analogy, not the car's owner.

Re:You can't abandon cars or real property

[MrResistor]

You can't abandon a car, you'll eventually be tracked down and made to pay for proper disposal.

Not true. I've abandoned my share of cars, and I've never been tracked down and made to pay for it. Why? Because cars are disposed of by junkyards, and junkyards make their money by selling peoples abandoned junk. The city calls up the junkyard and says "Hey, there's an abandoned car over here. Could you please haul it away?" The junkyard sends out it's truck, brings it back to the yard, pulls parts it can sell, crushes the rest to sell as scrap metal.

As far as your real property example, you wouldn't be tracked down for abandoning the property, you'd be tracked down for illegally disposing of toxic waste.

Unless you are comparing software to toxic waste, I don't see how either of these examples has any bearing at all on software.

A better example would be if I write a short story, don't copyright it, and leave copies at various coffee shops. I'm perfectly within my rights to do that. The coffee shop owner might be annoyed at having something else to throw away, but that's the most harm that would possibly be done. People could sit down and read it with their cup of coffee, take it with them when they leave, make copies of it for their friends, put it in an anthology they're putting together, put their own name on it, rewrite it, whatever.

Maybe it's pornographic, or contains dangerous, subversive ideas, but that's the chance you take when you pick up some random peice of paper and start reading it. At least with code you (should) have the opportunity to check it out (by looking at the source code) before it has an opportunity to do damage. Anybody using public domain software where they can't look at the source is a fool, anyway, on the order of someone who goes spelunking without a flashlight.

Re:You can't abandon cars or real property

[bluGill]

Are you sure you don't own the street? Typical practice in the US is that you own the rights to the property to the middle of the road, but you must allow anyone who wants to, the right to pass on the road without charge, and any utility to use the side of the road for cables/pipes.

I know I own half the road in front of my house, I suspect you do too.

Note, that by own I of course mean the right to rent the property from the local goverment who can demand whatever rent they want for it. In turn I vote to make sure the rent they want is reasonable, and keeps the road in front of my house in good shape.

Re:You can't abandon cars or real property

[SirSlud]

Bad.

What you abandon may, or may not be judged to have a detrimental effect to the society/environment (not the hippy kind, I mean the surroundings, context) .. but there is absolutely nothing preventing you from abandoning that car in a location where you have the approval of the land owner (or the community that maintains that land if that land is public domain). Heck, what you wish to leave behind is most often userful or valuable to somebody else.

Its simple ethics, morals, etc. The only reason public domain scares some people is because of the concept that nobody can claim that thing as private property. That conflicts with alot of classical capitalist economists theories on what you need in order to make capitalism work; the ability to claim ownership to something according to 'first come, first serve' .. which was how public land in fuedal times started suddenly becoming 'owned' overnight by the fuedal lords thanks to Adam Smith et al. It was the denial that public domain existed that allowed the ruling class to furthur cemenent their ownership of the last bit of publicly maintained/owned property within their land .. and started the creation of a lower class who while once could at least farm for their food on the public land were now subject to paying taxes for something they had for free to maintained themselves at one time. Read up on the Hedge Wars and Food Riots for furthur reading.

Re:You can't abandon cars or real property

[trix_e]

Wow, this is ignorant.

of course you can abandon a car or real property(or anything else for that matter).

There may be *implications* if you abandon something, but that doesn't mean you can't abandon it. If someone abandons a piece of real property (I can't remember the exact time lines and they vary by state anyway) then someone else has the right to claim it.

In any event, intellectual property rules differ greatly from real property rules, because of their very nature.

When there is no physical embodiment of the actual property, just a fixation of it in a form, all the rules change.

Yet another example of a poor analogy leading to a poor conclusion...

Re:You can't abandon cars or real property

[coyote-san]

I didn't say you couldn't offer software for free, I said it may not be possible to offer it and then *totally* walk away from it.

As an analogy, I've released some packages under both GPL and BSD licenses. If I discover I've made some horribly wrong assumption, I can and will make a honest effort to fix it, to contact people I know are using it, etc.

But when something is put into the public domain, I not only give up all of my rights to it, I'm announcing that I have no intention of maintaining it either. Not even if it turns out my supersecret encryption engine can be trivially cracked by something that's not widely known to the public, but is well known by the people who like to crack supersecret encryption.

*That* was the point I was making - software may be something that you can't just walk away from.

P.S., if you leave your car in your own (closed) garage you haven't abandoned it, by definition. However some (urban) jurisdictions or HOAs do require that all vehicles stored on your property be runnable, properly licensed and insured, etc.

Re:You can't abandon cars or real property

[coyote-san]

It's only the end of the story since the city decided not to pursue it. Depending on how aggressive the city is (also known as "why you never leave the junker in the rich part of town"), they could have:

1) sued you for the removal fee, plus collection costs. Since this involves a motor vehicle, it could be put down as an unpaid motor vehicle fine and you won't be able to renew your driver's license until you pay the fine. (After the recent interstate compact to crack down on truck drivers with multiple licenses, a lot of people are having to pay decades-old fines for long forgotten tickets in order to renew their DL.)

2) issued a summons for littering, abandonment, whatever. The fine, needless to say, is the same as the removal fee. When you fail to show, they could issue a bench warrant so the next time you're pulled over for any reason you're arrested. You rarely get out early if you're being held on a "failure to appear" warrant.

3) finally, they could have added this fee to the "must collect" list for your next vehicle registration. Even if you ride the bus for the next 5 years, when you buy another car you can't get the plates until you pay the removal fee for the old car.

Most jurisdictions haven't bothered pursuing these cases since, frankly, there's no money in it. Anyone who has such a bad clunker that they're abandoning it instead of trading it in won't be able to easily pay the fines.

But now that the country is in a "Law & Order" mindset and middle-America is paying for long-forgotten tickets, I wouldn't be surprised to see these fees being added to the "must pay or else" list.

Public domain is the natural state of expression

[uncoveror]

An idea, once expressed belongs to the world, aka, the public domain. Copyright was invented as a way to temporarily allow creative people to profit from expressing their ideas in writing, song, etc. Unfortunately, copyright has become a nearly permanent thing to enrich greedy corporate robber barons at the expense of the public domain, which soon may be a footnote in history Hollywood, the RIAA et al are trying to convince legislators that copyright is a natural right. I sure hope we can stop them, but since we can't grease palms the way the corporations do, it won't be easy.
http://www.dontbuycds.org
http://www.uncov eror.com/radio.htm

Public Domain

[Craig Maloney]

I think I heard about this "Public Domain". It only applies to things that were created before the 20th Century, right? :)

Re:Public Domain

[i0lanthe]

(I suppose you're referring to The Mouse? Heh.) It can apply to things that have been created too recently for copyright to have expired ... if the author chooses to place them in the public domain rather than to hold the copyright.

read Digital Copyright

[bluGill]

Jessica Litman wrote an excellent book Digital Copyright, which I recomend everyone read.

In the book she references a discussion of copyright lawyers, many of whom hold the opinion that it is not legally possibla to place works in the public domain.

Re:read Digital Copyright

[RickHunter]

Err... Why is it not legally possible to place works in the public domain? I don't think the legal concept of a public domain has been disposed of (though its now impossible for a work to enter it naturally), so why can't I (as a copyright holder) just say "This work is in the public domain"? After all, I own the copyright, don't I? Or do large American media corporations wnat to take that away too?

Re:read Digital Copyright

[Pogue Mahone]

In short, the laws don't specifically say you can give up your copyright on a work and since the right to put something into the public domain before its natural expiration hasn't been challenged in court, its still a grey area.

This statement is very worrying, because it seems to imply that the very basis of law is changing. It used to be the case that anything that wasn't explicitly forbidden by law was lawful. AFAICT the law doesn't explicitly forbid placing something in the public domain, so it must be lawful. Unless the basis of law is changing so that everything is unlawful unless explicitly allowed.

I don't know about you, but that worries me.

Re:read Digital Copyright

[mpe]

In short, the laws don't specifically say you can give up your copyright on a work and since the right to put something into the public domain before its natural expiration hasn't been challenged in court, its still a grey area.

Wouldn't preventing a copyright holder explicitally placing something into the public domain violate the WIPO treaty. Which recently passed copyright laws are allegedly ratifications of...

public domain vs copyright

[reverse flow reactor]

The problem with copyright is that is tries to accomplish two things: control distribution and maintain authenticity. These two goals need to be split up so that creative persons may choose to limit one or the other, or both, or neither.

For example, this post. I can care less how much this post is distributed. However, I do care that when it is distributed, it is distributed in verbatum, and that I am not bein misrepresented. I want to be able to control the authenticity of a work (to protect myself from libel and misrepresentation and plagarism, and to allow myself to receive credit for first stating an idea), but I do not want to inhibit the discussion or distribution of this post.

Another example - the ideal academic journal would allow me to maintain authenticity of my writings (so I can be credited with a discovery or recognised as an authority on a topic based on my work), but place no restrictions on the distribution of my academic publications. That way, more people can hear about my ideas and comment on them and build on them and apply those ideas.

Another example - a composer could write a song. Authenticity rights are granted. Distribution rights (or time-limited exclusive commercial distribution) are negotiated with a corporation willing to print CD's and ship them to stores around the world.

Maybe these are just rambling - post your comments below

Re:public domain vs copyright

[cleetus]

I can care less how much this post is distributed. However, I do care that when it is distributed, it is distributed in verbatum, and that I am not bein misrepresented.

There is actually some value to not controlling misrepresentation of your words (note that I say words and not ideas--Ideas are not copyrightable, their implementations as works are). The value lies in the fact that the public benefits from 'bad' derivative works (e.g.: how to tell the relative merits of a good/accurate movie review without a bad one?) just as much as from good ones. As far as misrepresenting your words in a non-derivative work (i.e.: just copying it poorly--implying the spelling mistakes are your errors), there is value in that too--a new/different work has been created. The public (though probably not you) has benefitted.

Remember, copyight is not about the authors only. Copyright tries to bridge the gap between the free rider problem of public goods and authorial incentives.

cleetus

It's hard to convince people

[Henry V .009]

I've been trying to convince the guy who owns the Chevrolet dealership across town that all his vehicles should be public domain, no go yet.

But seriously, copyright is a monopoly granted by the government in order to get people to spend the effort needed to create. Giving away copyrighted stuff to the public domain is charity. Simply charity. The entire free software system is built on the charity of a relatively few hardworking individuals. And while it's not problematic to make a living by leeching off of charity, it's damn hard to do it by provinding the stuff.

Re:It's hard to convince people

[peddrenth]

You what? Do you have no clue whatsoever what copyright law represents?

Everything becomes public domain - that is the default state of ANY information. Copyright law exists to make even more stuff public-domain, simply by giving authors an incentive to write more.

Of course, current US copyright laws don't say that, but then current US copyright laws are illegal. Derive what you like from them, it'll still be wrong.

Secondly, writing something without copyright attached is not "charity" any more than owning a home and not shooting any who approach it is "charity" -- copyright is a gift by the law which an author only need take if they intend to use their monopoly on distribution by attacking others who distribute it.

Thirdly, if you think free software is about charity, I suggest you keep the hell away from free software until you understand it, rather than insulting us with your crippled opinions. People who write free software do not do so out of mercy for those who use it.

Lastly, free software does not exist to provide jobs, it does not exist to provide money, it exists to provide software. If you want a job rehashing the same shit over and over again, go ask microsoft. If you just want the software, programmed once by a handful of people, and left as-is because it already works, that's what free software does. We are not a sweat-shop, we do not exist 'to provide jobs'.

Re:It's hard to convince people

[Henry V .009]

Copyright law exists to make even more stuff public-domain, simply by giving authors an incentive to write more.

Copyright law exists to give authors an incentive to write more, correct. However, it is public domain agnostic. There isn't a large practical difference between information that remains under copyright forever, and information that remains under copyright for a period of a century. Copyright law exists to create a situation where the information is available, whether or not you must pay for it.

A world where everyone has to pay $15 to buy any book because Public Domain ceased to exist is a damn sight better than a world where those books don't exist.

However, balance is desired. All monopolies are harmful, even the the beneficial ones that we need. I support a copyright restriction to 20 years rather than the current century or so a copyright can get on average.

Of course, current US copyright laws don't say that, but then current US copyright laws are illegal.

U.S. copyright laws are illegal? Enlighten me. The DMCA is illegal. But the current copyright laws appear to obey the letter of the law. (The argument currently being made that the laws are not specifying a limited time because Congress will just extend it in the future is very shaky legally.)

Secondly, writing something without copyright attached is not "charity" any more than owning a home and not shooting any who approach it is "charity" -- copyright is a gift by the law which an author only need take if they intend to use their monopoly on distribution by attacking others who distribute it.

Owning a home and letting anyone come there to sleep is charity however.

Your gift argument is silly. Even in a world with no governments and no copyright law it would still be charity. You are working to create something that you give away to everyone. That is charity. Many books from the time period before copyright are charity. The authors made no profit, and we have benefitted immensely from their charity.

Lastly, free software does not exist to provide jobs, it does not exist to provide money, it exists to provide software.

Hence the charity angle.

Re:It's hard to convince people

[Zathrus]

The argument currently being made that the laws are not specifying a limited time because Congress will just extend it in the future is very shaky legally

The extentions themselves are shaky, legally. A limited time means just that. It does not mean that you get to keep adding time repeatedly just before the clock expires. Doing so prevents the passage of IP into the public domain and circumvents the express purpose of the laws in the first place.

Your mistake is in thinking that public domain is not the natural order of IP. It is. Without a law, there is nothing to stop me from copying a book, music, video, or software. Or from copying how a complex (or simple) piece of machinery is built and selling it myself (or giving it away). Or duplicating the chemicals that make up Claratin or other drugs. There may be technological barriers, but we've seen those steadily fall away over the past few thousand years, and that pace continues to accelerate.

The purpose of IP laws is to give inventors, artists, writers, and so forth an incentive to publish their findings, discoveries, works, and such. It is intended to give them a limited time period in which to recoup their expenses - after which those protections no longer apply and they can no longer prosecute someone who uses that information without their consent.

The point I'm trying to make is that without IP laws we don't fall into a situation where I can't copy a book - we fall into a situation where I can do whatever the hell I want to with that book, and you have no say about it.

Re:It's hard to convince people

[i0lanthe]

Secondly, writing something without copyright attached is not "charity" any more than owning a home and not shooting any who approach it is "charity"

Owning a home and letting anyone come there to sleep is charity however.

Case 1: Sometimes people write software (or other intellectual artifacts such as, say, furry trek pr0n) "for themselves", without interest in profiting from it in any other way. In such a case, allowing other people to use this artifact (without offering support) costs the original author nothing and does not inconvenience him (until he is sued for making Kirk an ocelot).

Case 2: Other times, people release software (or other aforementioned artifacts) for reasons that they personally find compelling, but with results that do cause them significant personal inconvenience. For example, they may deliberately release "freely" something that they know many people would willingly have paid money to use; they may write something that they don't want themselves but that is desirable to others; they may spend time and resources responding to users (fixing problems, answering fan mail, attending conventions); etc.

The first case, due to the fundamental difference between physical and intellectual artifacts, is not comparable to a home-owning example (at least up until the legal action). The second case, ok, maybe. You could call it "charity" if you focus on the "other people receive intangible benefit" aspect (and if you consider furry trek pr0n to be a benefit). Or you could call it "enlightened self-interest" if you focus on the "author receives intangible benefit" aspect (and if you consider a reputation in the furry trek pr0n community to be a benefit). But I think I'd rather call it "just something that some people do for reasons of their own" so as not to have to decide whether this is really a win for anyone.

Re:It's hard to convince people

[Henry V .009]

I'll grant you that Case 1 isn't charity.

Case 2 seems to be charity. That intangible benefit you talk about is one reason why a lot of people give to mainstream charities. Reputation. And sometimes people give to charity "for reasons of their own" as well. It's not your motivations. Charity is simply doing something for other people without being payed for it.

But software being what it is, Case 1 is hardly ever usable software. It's a garage hack. (See The Mythical Man Month. I think I mentioned it in a post you replied to a while back.) To get Case 1 into something usable often requires Case 2 work. And then you have charity.

Re:It's hard to convince people

[Henry V .009]

Your mistake is in thinking that public domain is not the natural order of IP.

It would be a mistake if I had either thought or said that. I'm not sure where you got that from my post.

As far as the extensions, I disagree. But I'm a fairly strict constructionist about the Constitution. The only power not granted to the Congress by the Constitution is making a law that extends copyright out to forever.

Doing the same by acts of legislature is not actually the same. Nobody in Congress has the control of future Congresses. And the people can always throw the bums out.

And what should the Supreme Court do? Does it write its own maximum time period for copyright law even though the founders didn't? Does it throw out the current law to be replaced by another act of Congress, which it has just found illegal?

I don't see our current copyright laws getting thrown out anytime soon.

Re:It's hard to convince people

[i0lanthe]

Charity is simply doing something for other people without being payed for it.

Interesting - I would have gone for a slightly longer and more restricted definition, but maybe you consider that to be packed in the word "for".

But software being what it is, Case 1 is hardly ever usable software.

No kidding. (strangely this doesn't seem to stop people from putting it on the web, calling it open source, and hoping someone will (charitably) fix the bugs for them. bah.)

Actually I think you missed my point that even Case 2 might in reality fail to benefit anyone, in which case it doesn't deserve to be called charity. Or indeed actions that temporarily benefit others might be performed for purposes that are intentionally non-benevolent in the long run (irrelevant to most if not all open source software, so no need to dwell on that, but it's the reason I would take more care with the definition - is an open source worm really charity?).

Re:It's hard to convince people

[Henry V .009]

You've convinced me that you are a reasonable person, who can understand my points without forcing me to be pedantic first. So I won't bother too much cleaning up my definitions. The exceptions you have brought up are all real exceptions, I believe.

I just had the idea for another exception. Know anyone interested in helping me out with a non-charitable open source software project? I was thinking of creating a P2P free proxy net to break China's internet censorship scheme. Could be useful for some other things as besides...

Re:It's hard to convince people

[peddrenth]

Ok, I'll take you to task for that: Imagine that the next government specify that copyright exists for a LIMITED time of 37 x 10 ^ 99 years,...

According to your logic, this is still constitutional, despite that the universe will have long since ceased to exist by the time the "limited" period of copyright expires.

Well, assuming that that's a P.O.S. (which I sincerely hope you do, else there's no point in trying to continue a logical argument) then explain how increasing copyright by 90 years in the last 100 years is any different?

Re:It's hard to convince people

[Henry V .009]

But what if I put it in a worm? Or Kazaa?

Re:It's hard to convince people

[Henry V .009]

I think that's a slightly different argument. It's not that congress keeps extending the thing every 10 years, but that 90 years is too long. I don't know. In order to overturn that, the Supreme Court will have to set a maximum limit for copyright. In other words, they will have to rule that they know what the founders meant by limited better than the legislative branch, to whom the founder gave the power to decide how limited things should be.

Yeah, I think 37x10^99 years would get overturned. But 90 years? Especially when everybody in Europe does the same thing.

Re:It's hard to convince people

[mpe]

There isn't a large practical difference between information that remains under copyright forever, and information that remains under copyright for a period of a century. Copyright law exists to create a situation where the information is available, whether or not you must pay for it.
A world where everyone has to pay $15 to buy any book because Public Domain ceased to exist is a damn sight better than a world where those books don't exist.

However copyright still applies even to out of print books. With long term copyright it's quite possible that the abstract copyright will outlive any copy of the work. Whereas with short term copyright this is much less of a risk. Since the media would typically last several times the copyright term, we now have the situation where there is little media which will outlast the default length of copyright.

Re:It's hard to convince people

[mpe]

The purpose of IP laws is to give inventors, artists, writers, and so forth an incentive to publish their findings, discoveries, works, and such. It is intended to give them a limited time period in which to recoup their expenses

Note that it is not intended as any guarentee that they will recoup their expenses. (Let alone that they will make a profit.) It's simply to give them "first refusal" on any money which may be made when the work is new.

Re:It's hard to convince people

[mpe]

The Constitution states that copyrights may only be granted for a limited time. The Copyright clause speaks directly to the issue of the creators rights so how can there be any argument that a copyright term based on "life span plus years" of the creator is not in effect unlimited for the creator and thus in direct violation of the Constitution.

Which would in itself be a good reason for the US to ignore the Bern Convention. Indeed the US frequently ignores treaties for a lot more trivial reasons.
Does anyone know exactly where relating copyright terms to the creator's life came from?
It makes knowing where copyright expires on works difficult as well as the possibility of author assasination.

Re:It's hard to convince people

[Zathrus]

It would be a mistake if I had either thought or said that. I'm not sure where you got that from my post

Based off your arguments that public domain doesn't need to exist. PD is, indeed, an artifact of the copyright/patent/etc. system - but it's only an artifact because it would be undefinable without such protections and would be, more or less, the natural state otherwise.

And what should the Supreme Court do?

Declaring it illegal to extend a copyright from the past would be a start. In some ways that could be viewed as an ex post facto law - the work was created with the assumption that the copyright would last a specific amount of time. By extending that time period, after the point of creation, you have harmed the public domain and osteniably the rights of all the people therein. And have done in in a manner that can continue to affect them for perpetuity.

Is it shaky legal reasoning? Sure. But, again, so is the extention in the first place. I tend toward a strict constitutional reading myself, and in this case I feel that the extentions are an unlawful abrogation of the "limited term" clause. Want longer copyrights for new works? Fine. Go for it. But retroactively changing the copyright on prior art removes the limitation that was placed in the Constitution itself.

That said, on a personal basis, I'd like to see shorter copyrights... and possibly dependant on the domain of the work (ala patents, although that's a poor system to base work off of too). A lot of holes on "work for hire" need to be ironed out too - what's occurred in the music business is a travesty.

Public Domain is too free for most creative works

[jcsehak]

While it may be fine for a piece of code, putting a creative work like a song in the public domain can be dangerous. When I first started releasing my music, I wanted to make it free for people to listen to, copy and change. But I realised: what if the KKK made a propaganda video and wanted to use a song of mine in the soundtrack? If my work was PD, or even released under the EFF's Open Audio License, they'd be able to. Open source purists might argue that people should be allowed to use free work for good and for evil, and that may be alright when your work is an app that converts mp3s to oggs, but with music it's not that simple. If a song of mine was used in a KKK video, not only would it compromise the artisitic integrity of the song, but it would ruin the experience for anyone who heard it first alongside the video. More importantly, my reputation would be shot to hell, because it would be an easy matter for people to assume that I worked alongside the KKK for this project.

Another issue I have is that if I put my songs into the public domain, and Sting, for instance, hears them and likes them (work with me here, it *could* happen), there's nothing to stop him from rerecording them as his own work. Then when I play my own song later on down the road, people would say "Hey, that's a Sting song!" Not only that, but Sting would be free to copyright them, so I would have to get his permission before releasing an album of my own songs! For these reasons, when I wrote the Open Sourse Music License, I kept it as close to the GPL as possible, but included a term to prevent people from displaying a song alonside accompanying video without the author's permission. I was hesitant to include it, but I don't think I had any other choice. If anyone else has any better ideas, let me know.

I fully applaud the Creative Commons, and everything they're doing with it, but for many people releasing your works into the PD can cause a lot more problems than it will solve.

Mickey Mouse has fallen into PD despite Bono Act

[yerricde]

If not, maybe some of the movie copyrights can be invalidated -- don't you love irony?

Lauren Vanpelt has done the math and found that Mickey Mouse has already fallen into the public domain due to a faulty copyright notice. (Back then, "© 1929" wasn't enough; it had to be "© 1929 Walt Disney".)

Therefore, because there is a public domain DVD encrypted with CSS, and because the DMCA's circumvention ban (17 USC 1201) affects only "works protected under this title" (i.e. copyrighted works), DeCSS is now legal if marketed only to decrypt public domain content on DVDs (1201(a)(2); 1201(b)(1)). Good news for Charlie Chaplin DVD collectors.

Sonny Bono hit that tree, the concept of a vibrant public domain died.

Current BitTorrent license

[bramcohen]

BitTorrent (which I'm the author of) is currently released under the MIT license. There is a single file in it which is LGPL - if anyone who knows Python hasn't read the code yet and would like to help clean-room that one file I would much appreciate it.

Thankfully, I haven't gotten a single piece of mail pestering me about the license since I switched away from public domain, even though MIT is almost as permissive.

I did do one slightly controversial thing - I capitalized the legal discraimer properly. Usually it's all caps, which I think is ugly and pointless. I did leave the part where it says "AS IS" in caps though.

BitTorrent development, by the way, is proceeding apace. The first mature release, with a finalized protocol and no phoning home on startup to make sure it's still a current version, will probably be released within the next few weeks.

Re:Current BitTorrent license

[3seas]

Oh how the computer industry matrix has made people afraid of freedom. Or maybe they just want a pill to go with things.

Re:Current BitTorrent license

[Deven]

I haven't read the code, but I don't use Python. To "clean-room" that file, you would need it written in Python from a description? I could do it in Perl, which you could port. How long/complex is the code?

As for legal disclaimers, the ALL CAPS is indeed ugly, Unfortunately, it's not pointless -- many laws require that certain disclaimers must be presented in all caps to be valid. (Yes, it's stupid; people get used to the caps and still tend not to really read it and realize what it says.) If you change those disclaimers from ALL CAPS to more readable mixed case, you may inadvertantly negate some of the legal protection they're meant to provide. (IANAL; this is not legal advice!)

Matrix original?

[yerricde]

It's rare you see a completely original idea (... The Matrix)

The Matrix was not entirely original. What it didn't borrow from Ghost in the Shell it borrowed from the Christian Bible and East Asian wire-fu movies (CTHD's predecessors).

"Public Domain" too dangerous

[tlambert]

I would put most of my source code in the Public Domain, if I could.

I can't.

Not "I won't".

I *can't*.

My problem is that, without a license, I can't attach a "hold harmless", or prevent my name being used to sell code derived from it, but of which I personally would not approve.

So to keep rights to my good name, and protect myself (as much as possible) from litigation arising from the use of my gifts to the public, I have to attach the minimum possible license that still gets me these things (the BSD license).

It's not that I *want* to do this, it's that there are no implicit legal protections for the authors of works placed into the public domain.

Without such legal protections, I simply can't *afford* to make the gifts that I want to make to the public.

It's just too dangerous.

-- Terry

Re:"Public Domain" too dangerous

[anthony_dipierro]

We've effectively made charity potentially illegal, since doing something out of compassion or to "scratch an itch" can lead to liability down the road.

Back up that statement with an actual law or court case. If you aren't selling the product, and you aren't acting maliciously, you're not responsible.

Re:"Public Domain" too dangerous

[Kiwi]

Back up that statement with an actual law or court case. If you aren't selling the product, and you aren't acting maliciously, you're not responsible.

I second that statement. I think this whole idea that putting code in the public domain makes you more vulnerable to lawsuits is nothing more than an urban legend.

I think, quite frankly, it will actually help a lawsuit because a court can more readily understand "I put it in the public domain" than they can understand "I licensed it under the GPL, which is in this 20-page document here" or "I licensed it under a BSD license".

I will tell you what happens when a court case sees something like the GPL. The judge glazes their eyes over this rather bizarre complex maze of legaleze. It weakens the "I gave it away" argument; the other side can now say "You call a piece of legaleze that long 'giving it away'?"

Lawyers like seeing big legalese in software packages because they would get paid less to say "Just put it in the public domain". The FSF likes seeing big legaleze in software packages because they have a particular anti-corporate agenda (which, BTW, I mostly agree with). Slashdotters like seeing lots of legaleze because they can pretend they are smart by pretending to interpret the legaleze.

I am, of course, willing to be proven wrong. Please cite court cases and damages paid. Please, if possible, put the court decisions in question on line.

- Sam

Re:"Public Domain" too dangerous

[Arandir]

Compared to legislative legalese, the GPL is quite simple. Compared to EULA legalese, it is on par. Compared to every other Free Software license, it is a nightmare of complexity, surpassed only by the likes of the IBM and Sun licenses. Compared to the BSD or MIT licenses, it begins to resemble a work of Proust.

Bit Torrent

[NitsujTPU]

No offense, but I can see why people would shy away from supporting a product that causes the end user to support the distribution medium of the company in terms of server bandwidth. Not only is is quite possibly a good way to spread viruses, but also it puts undue burden on the customer.

If I had to chose between Visio and Rational Rose (ick on both), but Rational required me to mirror their software on my machine as a distribution medium, I would go with Visio.

More about GOSH's perpetual copyright on Peter Pan

[yerricde]

Shouldn't Peter Pan have become public domain? I think it's been long enough. Instead every production of Peter Pan pays royalties to an English Children's hospital.

Here's some more information on the perpetual copyright on J. M. Barrie's Peter Pan. This copyright is subject to compulsory licensing; royalties go to Great Ormond Street Hospital. Disney will get a dose of its own medicine when it tries to release Return to Never Land on DVD in Region 2.

This applies only in the United Kingdom. Such a literal perpetual copyright cannot happen in the United States because of the "limited times" clause in the Constitution, Article I, section 8, clause 8. However, this does not stop Congress from declaring: "Resolved, That it is the policy of the Congress of the United States to enact a twenty (20)-year copyright term extension every twenty (20) years," unless Eldred convinces the Supremes otherwise.

software by itself is not very good.

[Steveftoth]

Any random piece of software built today is not very useful without someone who knows how it works. You need insurance on it basically, insurance to update it if there are bugs found, updates to it when the hardware changes, etc. Now, PD software may be free, but you are not getting any insurance from whomever whote it for free. That's why you should be paying for software, for the insurance that someone will update the software for the next generation of technology.

Of course, that falls apart if you don't ever update your technology. Then you don't need new software.

Re:software by itself is not very good.

[(void*)]

That's why you should be paying for software, for the insurance that someone will update the software for the next generation of technology.

To put it explicitly, you should be paying someone to maintaining that software that you rely on. You can choose not to, but then in that case, do it yourself.

Re:Not all bad.

[jguthrie]

Actually, yes I can argue against extending that copyright, if it means that I have to extend the copyright of all works of similar vintage.

The problem with the current system is that copyright law serves to un-publish works. You can't make copies of a work because it's protected by copyright, but it's out of print because the publisher (and, make no mistake, the publisher has all of the rights in the current system) has decided that the market for that work isn't large enough to be able to keep it in print.

Working against that are examples of very long-lived works such as To Kill A Mockingbird or "Peter Pan". The vast majority of all works don't have nearly the longevity of "Peter Pan". So, extending the copyright for all of those works simply because one of those works might be continuously in print for many decades leads to works that are long forgotten. We are basically destroying our cultural heritage by not allowing works to fall into the public domain.

The suggestion I once made, that copyright holders be required to periodically pay for copyright in order to keep it, was met with cries that I was trying to prevent people from becoming authors and that I was trying to starve current authors' grandchildren. This idea would allow works like "Peter Pan" to stay in copyright basically forever, (meaning "until the fees aren't paid,") and still become public domain as soon as interest flags sufficiently for it to fall out of print.

The only part of my idea that I have trouble defending is the fact that I'm spending a lot of time thinking about making sure that people can still have access to works that they didn't care enough about when they were first published to keep them in print. Why should anyone care about a zillion B-movies that no one is ever going to re-release?

Re:Public Domain is too free for most creative wor

[kin_korn_karn]

I think you gave up all hope of artistic integrity when you allowed people to take your music and remix it and manipulate it even as audio. Once the notes are out of order it's not your vision any more, it's just a blob of media and nobody respects it.

Copyright PROTECTS artistic integrity. It's a horrible thing when this is abused, but hell, I'm a musician, and I don't want anyone chopping my stuff up and making it into their own statement. It's MY statement, not theirs. They can go write something of their own if they have something to say.

What if I went to the city art museum and decided to chop up one of the Picassos and rearrange it because I thought it looked better?

Yes. Psychologically speaking...

[MenTaLguY]

Yes. At least that's the way human psychology works.

We generally assume (it's a survival thing) that nobody acts out of pure altruism.

In the case of the $99.95, the guy is apparently being upfront about his motivations (what he gains from this exchange).

Okay, he might run off and you'll be out $99.95, but he isn't showing any immediate signs of having something more insidious in mind.

The other guy giving stuff away for free, on the other hand, seems to be hiding his true motivations (what he stands to gain) from you.

"What?" "Nothing." "Really?" "You want nothing in exchange?" "I want nothing in exchange." "...REALLY?" "Yes!" "Are you sure...?" "YES!" "Uh... yeah. I ... have to go now..."

We instinctively interpret evasiveness about motivations as a danger signal. We should. It's an important survival mechanism.

If you ever plan on giving away something for free, be darn sure you're either doing this in a subculture where it is normal (and thus there is a reasonable expectation of eventual reciprocation from the group -- e.g. open source circles), or be VERY clear about your motivations up front.

I submit this white powder for your opinion.

Re:the only real public domain:

[dinotrac]

No. The GPL is expressly and explicitly not public domain.

The GPL grants a limited set of rights in exchange for a defined set of obligations. The copyright holder retains ownership.

Public domain grants nothing. The creator of a public domain work renounces all ownership or, by expiration of rights, loses ownership. Without ownership, you can not impose conditions.

That is what makes the public domain the only truly "free" province of Intellectual Property.

The GPL diverges from the public domain in order to insure certain behaviors that its drafters consider vital to the vitality of free software. They have placed limitations on some freedoms in order to protect others.

Yes! We have no bananas!

[yerricde]

It's MY statement, not theirs. They can go write something of their own if they have something to say.

What if most of the 30,000 possible "statements" have been used up?

Re:Public Domain is too free for most creative wor

[sheldon]

If you release a song into the public domain, it exists there for eternity. Sting can't come along and re-copyright that song and then sue you for playing it. The only thing that Sting could do would be to record the song with his own bass riffs and copyright that particular rendition of it. So you couldn't copy his CD single, but anyone could still sing the song.

This is the kind of FUD the article talks about. You've overstreched the point. Yes, anyone could perform the song without royalties, but no they can't take the song away from you or anybody else.

On the other hand your KKK example is somewhat accurate. Although you could simply use a real example, like of when the Reagan campaign wanted to use Springsteen's "Born in the USA" song. Mr. Springsteen refused because he felt the song was about exactly the opposite of what Reagan stood for.

Re:Public Domain is too free for most creative wor

[John Hasler]

"...there's nothing to stop him from rerecording them as his own work."

Except that doing so would be fraud.

"Not only that, but Sting would be free to copyright them, so I would have to get his permission before releasing an album of my own songs!"

Wrong. Waiving your copyright would not give anyone else the right to copyright it.

"For these reasons, when I wrote the Open Sourse Music License [rootrecords.org], I kept it as close to the GPL as possible,..."

You have deviated far from the spirit of the GPL
with this:

You may charge a fee for the physical act of
transferring a copy, but the fee shall be no
more than the cost of the media and associated
shipping charges, unless you obtain express
written permission from the original author(s).

Re:Public Domain is too free for most creative wor

[Software]

Not only that, but Sting would be free to copyright them, so I would have to get his permission before releasing an album of my own songs!

Either your concept of public domain is screwed up, or mine is. IANAL, but AFAIK, a song's music arrangement and lyrics may be put into the public domain. Copyrighted recordings may be made of the music and lyrics. That doesn't give the performer the copyright to the music and lyrics; it only gives the performer the copyright to that recording. For example, I can't get a copyright to all performances of Beethoven's Fifth Symphony by recording my performance of it. Nor would Sting be able to claim copyright of your works. But if I go around selling CDs with burned copies of the Philadelphia Orchestra performing Beethoven's Fifth, I will be infringing the Philadelphia Orchestra's copyright.

Re:More about GOSH's perpetual copyright on Peter

[Amazing Quantum Man]

Disney will get a dose of its own medicine when it tries to release Return to Never Land on DVD in Region 2.

Why, they just won't release it Region 2. I bet things like this are part of the reason that region coding exists!

Freedom Means People Can Choose Wrongly

[FreeUser]

putting a creative work like a song in the public domain can be dangerous. When I first started releasing my music, I wanted to make it free for people to listen to, copy and change. But I realised: what if the KKK made a propaganda video and wanted to use a song of mine in the soundtrack? If my work was PD, or even released under the EFF's Open Audio License [eff.org], they'd be able to.

Freedom means people can choose wrongly. I sympathise with how you feel ... I would hate to see one of my novels taken and used to promote religion, particularly montheistic religions like judaism, christianity, and islam (all of which I truly loathe equally). Nevertheless, giving up exactly that kind of control is precisely what we as artists have to do if we are to create a public commins in which our creativity can flourish. In other words, our creative freedom requires that we respect and defend the creative freedoms of others, even those with whome we vehemently agree.

So how do we handle this? I think the best approach isn't to control or restrict how people can use our work (what if I wanted to use your work in the anti-IP move adaptation of my novel? Your fear of the KKK has also made you restrict my ability to use your work as well, something you perhaps neither intended nor wanted), but rather to protect our reputations. My first stab at this is a Free Media License based loosely on both the GPL and the FDL. It needs some more work and certainly isn't ready for use just yet, but the entire license is designed with four goals in mind:

• Protect the freedom of the content (the four freedoms the Free Software Foundation refers to, applied to content and media)
  
• Insure the freedom of derivative works (no BSD-style loopholes to allow the MPAA, RIAA, or Microsofts of the world to lock down derivative works and thereby deny their use by future generations of artists)
  
• Insure that creative credit is given the original artist(s) ["enforced citation"]
  
• Protect the good name of the author by requiring derivative works to clearly differentiate themselves from the original work
  

My license is currently too complex IMHO ... I hope to have that corrected in the next draft soon. As it is an ongoing work in progress, I welcome any and all constructive criticism and in particular would welcome yours, as you have also grappled with many of these concepts in your license.

In any event, the result I am trying to achieve is that, yes, the KKK could use my material in a propoganda video, but while they would be required to note that they had taken my material (and credit me as the original creator of that material), they would have to make even more clear the fact that their use, while legal, is unauthorized and unendorsed by me (the original artist, and of course any intermediate artist who have contributed/modified the material in the meantime). Furthermore, any changes they may have made they must take responsibility for, by applying their name to the current incarnation.

Its ugly to have people like the KKK and Al Q'aida around, but so long as they are prevented from beshmirching your reputation you should be able to release your content with confidence. It is insuring that protection that is IMHO the most important aspect of any Free Media License.

correction

[FreeUser]

In other words, our creative freedom requires that we respect and defend the creative freedoms of others, even those with whome we vehemently agree.

*sigh*

That should, of course, read "vehemently disagree." So much for proofreading.

Re:Public Domain is too free for most creative wor

[Danse]

I couldn't care less if you want to make a copy of the Picassos and chop them up, but I'd be pretty pissed if you tried to do it to the originals./p.

So I can claim that I wrote Frankenstein?

[NoMoreNicksLeft]

Subject says it all...

Re:So I can claim that I wrote Frankenstein?

[John Hasler]

You can claim you wrote _The Hunt for Red October_: lying is not illegal. However, if you swindle people out of money by falsely claiming authorship you will be in trouble whether the work in question is actually by Mary Shelley or Tom Clancy: fraud is a crime.

Re:So I can claim that I wrote Frankenstein?

[NoMoreNicksLeft]

Good point. But I'll go you one better, since it seems that no one else will bring it up.

Authors, in my opinion, have a distinct set of moral/natural rights from the legal copyrights they are granted. They have a right to make it known that they created the work, and the right to keep others from lying about it, even when the liars aren't swindling money.

I could make $0.00 from it, and I would still be infringing Tom Clancy's rights. Even if he released it into the public domain, it would still be infringing them. Sell the public domain works all you want, but give credit where credit is due.

At least, in my opinion.

Shades of MojoNation?

[Fencepost]

Is BitTorrent basically the same thing as the transport layer of MojoNation (apparently discontinued, but with parts still alive as MNet>?

Re:Shades of MojoNation?

[bramcohen]

BitTorrent was written using experience gained writing the transport layer of Mojo Nation, however, there are hardly any shared concepts and very little (hopefully soon to be no) shared code.

Works of the US government are PD

[yerricde]

For example, MTV used the footage of the moon landing in their early advertising because it was available to them freely.

The footage of the Apollo 11 moon landing, like all works of the United States government, entered the public domain upon creation (17 USC 105). "A 'work of the United States Government' is a work prepared by an officer or employee of the United States Government as part of that person's official duties" (101).

Re:Mickey Mouse has fallen into PD despite Bono Ac

[Rupert]

There are other movies available on DVD on which the copyright has definitely expired. Go look at amazon.com and start searching by year. The earliest I found was 1895, but that was part of a collection which is undoubtedly under a later copyright.

Re:Public Domain is too free for most creative wor

[jcsehak]

Wrong. Waiving your copyright would not give anyone else the right to copyright it.

Yes, but it gets tricky. For instance, Disney has all sorts of copyrights to the Little Mermaid, Beauty and the Beast, etc. Legally, I'm allowed to use these characters for whatever because they're in the public domain, but I wouldn't be suprised if Disney sued and I only won the case after losing a lot of money in legal fees. Theoretically, you're 100% right, but I can imagine that things could get twisted around in some way that ends up getting the original artist screwed, and things are hard enough for indipendent musicians out there as it is.

You have deviated far from the spirit of the GPL with this

I thought that was a standard open-source thing. When I bought my Debian CDs, they were $5. Of course, companies like Red Hat can charge lots of dough for support, but as I understand it, you're not allowed to charge for the sale of free software you simply downloaded and repackaged. But please correct me if I'm wrong.

Re:Public Domain is too free for most creative wor

[jcsehak]

Chopping up a copy of a picasso and exhibiting it would be considered art. In the art world, since it's impossible to make an exact copy of a painting, you can do whatever you want. One major artist (can't think of his name) even painted a painstakingly accurate copy of the mona lisa and exhibited it as his own work. It was perfectly legal and widely regarded as an important artistic statement.

I have no problems with someone chopping up my work and making their own artistic statement, even if it was I thought it was total crap and I didn't agree with it. I just don't want people using my work (or bits of it) to promote their non-artistic goals, be they racism or ABC's new fall lineup.

Re:Trust your audience

[jcsehak]

What if I was a gangsta rapper, and one of my songs went "Nigga, you gonna die!"? In this exmple, it'd be easy for the KKK to twist my words around to make me look like something I'm not.

But do you think Louis Armstrong gets a bad rep because "What A Wonderful World" is played at Republican Party conventions? He may find them morally despicable, but it doesn't really matter. Only idiots assume the writer is associated with the politics.

Broadcasting something is very different from packaging it alongside video. If someone saw a KKK video and saw my name in the credits, it would be a reasonable assumption that I either believe in their goals or I'm a greedy bastard who'll license my music to anyone. It wouldn't occur to most people that the song might be in the public domain.

Re:Public Domain is too free for most creative wor

[Hard_Code]

So I guess you don't consider mash ups valid art/mustic.

Re:Public Domain is too free for most creative wor

[listen]

You are completely and utterly wrong.
You can charge whatever you like for
GPL'ed work.
You just aren't all that likely to get
very much if the person can get it
cheaper.

Re:Public Domain is too free for most creative wor

[Per Wigren]

I thought that was a standard open-source thing. When I bought my Debian CDs, they were $5. Of course, companies like Red Hat can charge lots of dough for support, but as I understand it, you're not allowed to charge for the sale of free software you simply downloaded and repackaged. But please correct me if I'm wrong.

Ok, I'll correct you. :)
You're free to charge $1000000 for an Open Source HelloWorld.c that you found on the net if you want to, but you still have to make the sourcecode available to anyone who asks for it. And if ONE person buys it from you, he/she is free to give copies away to everybody in the world!

Re:Public Domain is too free for most creative wor

[Patoski]

When I first started releasing my music, I wanted to make it free for people to listen to, copy and change. But I realised: what if the KKK made a propaganda video and wanted to use a song of mine in the soundtrack? If my work was PD, or even released under the EFF's Open Audio License [eff.org], they'd be able to.

To be honest with you I don't think these guys would care about your copyright. They would just use your song and wait for a law suit from you that would likely never come (lawyers aren't cheap).

Open source purists might argue that people should be allowed to use free work for good and for evil, and that may be alright when your work is an app that converts mp3s to oggs

Or cryptography programs that was/is used by unsavory people such as Al Qaeda. You don't blame the ppl who wrote PGP or SSH for any of the bad stuff ppl do with their software do you? I can't see anyone with an fair amount of sense blaming you for some group using your public domain song.

but with music it's not that simple.

You're trying to draw a distinction where I believe none exist. Your music to this group would be just another tool to further their own ends the same as a word processor spitting out KKK flyers.

More importantly, my reputation would be shot to hell, because it would be an easy matter for people to assume that I worked alongside the KKK for this project.

See above comment about PGP and SSH...

Another issue I have is that if I put my songs into the public domain, and Sting, for instance, hears them and likes them (work with me here, it *could* happen), there's nothing to stop him from rerecording them as his own work. Then when I play my own song later on down the road, people would say "Hey, that's a Sting song!"

No, but he would credit you in his liner notes. That would be a proud badge to wear indeed. Sting should get credit for a quality performance of your song as you would get credit for writing it.

Not only that, but Sting would be free to copyright them, so I would have to get his permission before releasing an album of my own songs!

As other people have pointed out you are mistaken on this point. You would not have to get Sting's permission to use any song in the public domain. Now you couldn't include his performance of your song on one of your CDs but you're more than free to record and distribute your own versions of the song.

Before you dismiss submitting works into the public domain keep in mind that today what we consider to be the greatest works of art were mainly created in a world w/o any notion of copyrights. Artists _very_ liberally borrowed and improved on one another's pieces until pieces of art were finally honed into masterpieces. Today's copyright law chains art and inhibits artists from building on each other's works as they have done in the past. No one's art is so perfect that it cannot be improved upon by another artist. As artists IMO we should be far more open to collaboration. As an artist to believe that your original is the best or most true interpretation is arrogant and shows our over inflated sense of self worth. We really need to get over ourselves and realize that today's copyright laws are mainly tools for the mega media corporations to protect their own interests.

Re:Public Domain is too free for most creative wor

[kin_korn_karn]

exactly. In music the notes ARE the original, no matter how it's transmitted - live musicians playing it, on sheet music, tablature, or on a playback medium.

Therefore, any alteration destroys the original intent.

Re:However, is there any practical difference?

[Fesh]

"What if your child tries to claim the copyright as part of your esate after you die."

Or, for that matter, if you change your mind later on? You still hold the copyright, nothing legally binds you to keep your word that the work is unencumbered by copyright restrictions.

Okay, I changed it

[jcsehak]

you guys have convinced me :)

Re:Public Domain is too free for most creative wor

[Art Tatum]

In music the notes ARE the original

Errrr, no. The ONLY thing that can be considered original is the concept in the composer's head. Original intent is lost the second it becomes more than an idea.

Even if we could travel back in time and listen to a period orchestra playing a Mozart symphony, we wouldn't be hearing the same music because we bring our own cultural baggage into the experience. Your perception of a piece of music depends entirely on what else you've heard (and even on your philosophy of art and life in general). It is completely impossible for us to experience Mozart's music as the listeners of his day would have. Even THEY wouldn't have gotten the original intent. Most of them were blissfully ignorant of the depths of the work.

Furthermore, MANY musical works are built on borrowing. Bach arranged Vivaldi concerti for keyboard. A large portion of Liszt's performing repertoire consisted of his piano reductions of symphonic and operatic works. Jazz is based on quotations. Rap and other electronic genres are based on collage techniques. Ever heard a marching band? Almost ALL marching band charts are arrangements of works from other genres. What's more, arrangments and recompositions of other composers works are a PRIMARY tool for learning and artistic growth. Mozart himself did this.

Now, are people ever unhappy about what someone has done with their work? Sure. But a lot of people are happy with it too. It's gratifying to see someone take what you've done and extend it beyond what you ever dreamed was possible.

Re:Public Domain is too free for most creative wor

[teg]

You're free to charge $1000000 for an Open Source HelloWorld.c that you found on the net if you want to, but you still have to make the sourcecode available to anyone who asks for it.

Not correct either. You only have to provide the source code to a licensee - e.g., if someone bought the binary of a GPL program for $1 million and later asked for the source code, you'd have to give it to the customer for a nominal fee. He could do whatever he wanted to within the GPL with the source and the program, including handing them out for free. You have no obligations to anyone else.

Re:Public Domain is too free for most creative wor

[cpt kangarooski]

Sadly, you've missed the entire point.

It is INTENDED that the KKK -- or absolutely anybody -- be able to utilize public domain works. Hell, they probably sing 'Dixie,' but the point is so can you. And of course, reputation is irrelevant as far as copyright is concerned, as can be seen since that particular song was written by a New Yorker who's reputation was tarnished when the Civil War came along a couple years later. But no one gives a damn. Having the song is beneficial, and in fact, whether you like it or not, it WILL be in the public domain sooner or later, all you can possibly do is delay it or not write songs at all.

Furthermore, your second point is in error. While other artists certainly could rerecord your music (Disney does this all the time with fairy tales) it doesn't prevent you from releasing the original. (and in fact, there are plenty of other cartoon adaptations of fairy tales that leech of off Disney's publicity for _their_ adaptation) It can't work the way you describe -- then the copyright would be secured originally to someone not the author, which is grossly unconstitutional.

Re:Public Domain is too free for most creative wor

[cpt kangarooski]

What you mean like the way that Marcel Duchamps painted a mustache and beard onto the Mona Lisa? He called it L.H.O.O.Q. It's somewhat funny, really.

Copyright is intended to get creative works out there so that people can do stuff with them. It is not intended to protect artistic integrity, in fact it is intended to prevent it. It is intended to get works into the public domain where people can change them, republish them, base other works off of them, etc. That's the _only_ purpose of copyright, in fact.

Re:Public Domain is too free for most creative wor

[cpt kangarooski]

No they are not. Original in this context refers ONLY to the original medium in which the work was fixed. For example, the original statue of 'David' is a big block of marble on a pedestal in a museum in Florence, Italy and was carved hundreds of years ago by Michaelangelo.

A COPY is any other statue of David sufficiently closely based on that one, whether made out of marble, concrete, play-doh, or mashed potatoes. (which mean something ;)

Each of these embodies the creative work -- which is the shape and appearance of the statue, but it is beyond meaningless to call a work an original. It isn't a tangible thing.

Musical notes are a work. The original song is just the first historical instance of them.

I strongly suggest you quit posting on this subject until you learn what the hell you're trying to talk about.

Re:Public Domain is too free for most creative wor

[Danse]

Therefore, any alteration destroys the original intent.

Nope. Any alteration would create a derivative work, that is only based on the original. It doesn't do anything at all to the original.

If it's leaking oil....

[coyote-san]

In many urban jurisdictions, you can't store a non-runnable car on your own property. Not even in your backyard, because it's considered an "attractive nuisance." Even in a rural area, if it's leaking oil the local environmental protection agencies may pay a visit.

Other examples are old refrigerators and freezers (must remove door from hinges to prevent children from climbing in and closing the door), and now I think you need to have the freon removed as well. You must have fences around pools, etc.

If you have your own forest, *and you haven't properly marked it "no trespassing*, then I believe people have the right to cross your land as long as they don't interfere with your livestock or other operations. At least in the west with old "free range" laws. But if you've been using it as an illegal dump, done illegal mining, or created some other nonobvious danger and you haven't warned others than you better believe you're liable. Even if your land is posted "no trespassing," if you have a shallow stream kayakers and canoeists usually have a right to passage and right to landing. You can stop them from having a picnic, but can't stop them from making necessary repairs or rebalancing their watercraft.

And for the record, it's *falsely* yelling fire in a theater that was used as an analogy in that famous WW-I case. Only an idiot would argue against warning people of a real fire in an era predating non-flammable upholstery (theaters could go from a spark to raging inferno in a matter of seconds), but likewise only an asshole would yell fire knowing that the ensuing panic would also injure many people.

Easements

[coyote-san]

Those are easements, and most properties have numerous easements.

You own the road to the middle of the street, but there's an easement for the road and sidewalk. If you're in more rural areas, you may have an easement for your neighbor's driveway. There's an easement for your utilities (phone, power, gas, water, sewer, cable tv, etc.), and these companies can dig up your garden or tear down your hot tub if you put it over that easement. You usually can't build a permanent structure within N feet of the property line.

I'm in a townhouse, and our property extends into two adjacent creek beds/flood control channels, including the bike paths. The city will run a snow plow over the paths, but we're responsible for replacing downed trees.

Re:Not all bad.

[mpe]

You can't make copies of a work because it's protected by copyright, but it's out of print because the publisher (and, make no mistake, the publisher has all of the rights in the current system) has decided that the market for that work isn't large enough to be able to keep it in print.

Maybe the current copyright holder does not know they even have the rights. Corporations merge, restructure, go bankrupt, etc.

The suggestion I once made, that copyright holders be required to periodically pay for copyright in order to keep it, was met with cries that I was trying to prevent people from becoming authors and that I was trying to starve current authors' grandchildren. This idea would allow works like "Peter Pan" to stay in copyright basically forever, (meaning "until the fees aren't paid,") and still become public domain as soon as interest flags sufficiently for it to fall out of print.

Note that the renewel fee cannot be too low, otherwise you can still get hording of out of print works. One possility would be an exponetial fee, which would also make perpetual copyright impossible anyway.

The only part of my idea that I have trouble defending is the fact that I'm spending a lot of time thinking about making sure that people can still have access to works that they didn't care enough about when they were first published to keep them in print.

They might have zero value as they are, but be valuable in helping to create new works.

Why should anyone care about a zillion B-movies that no one is ever going to re-release?

The copyright holder probably dosn't, so they have little interest in ensuring that whatever media they are on lasts until the copyright expires.

Re:A good idea.

[mpe]

The fee shouldn't even have to be that large at all -- it's just there to prove that someone actually cares enough about the work to keep up the copyright.

It needs to be large enough that it will not be worth holding on to an out of print work "just in case".

The constant extension of automatic copyright is becoming a serious problem. There are just too many works that are close to unavailable, the demand for a limited reprint etc. is there, but either the copyright holder will not either reprint themselves or license the copyright to someone else, or it's impossible to find the original copyright holder.

The more copyright is extended the worst these kind of problems will get. Not only can it be difficult to track down copyright holders that person (or more likely corporation) may not even know they hold a copyright. e.g. the copyright was owned by a company which went bankrupt 20 years ago, but wasn't considered a valuable asset at that time.

Mocking RMS

[Aapje]

I happen to mock RMS for creating the word "Free software". Nobody understands it without a lengthy explanation. And you commend RMS for creating a big ugly legalese document to explain it? Are you a guy that expects people to read EULA's as well?

Why Free software should be called Forever Free Software or at least something better

Re:Public Domain is too free for most creative wor

[kin_korn_karn]

The original publication is the first historical instance of the song. This can be either a score, or a recording of people playing it.

However, in all other cases, I'm stating my opinions, not the law. In my opinion nobody else has any right to mess with my songs. Sorry if I didn't make it clear that I'm speaking only for myself.

Re:Public Domain is too free for most creative wor

[cpt kangarooski]

You are definately speaking only for yourself.

Because I can perfectly legally mess with your songs quite a lot, depending on the means by which I do so, and you would be left with no legal recourse.

If you just want to impotently shake your fist at me or something, I couldn't care less.

Re:Public Domain is too free for most creative wor

[kin_korn_karn]

nice artistic attitude there. I hope you enjoy not creating anything of your own, but instead leeching off of others' hard work and inspiration. Seems to make a lot of money for guys like Sean Combs