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

[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.

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?

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?

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? :)

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.

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

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.

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.

"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: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.

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.

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.