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Why We Still Can't Really Put Anything In the Public Domain

Posted by timothy on from the here-are-nice-things-no-wait dept.

Press2ToContinue writes While you can make a public domain dedication or (more recently) use the Creative Commons CC0 tool to do so, there's no clear way within the law to actually declare something in the public domain. Instead, the public domain declarations are really more of a promise not to make use of the exclusionary rights provided under copyright. On the "public domain day" of Copyright Week, Public Knowledge has pointed out that it's time that it became much easier to put things into the public domain. Specifically, the PK post highlights that thanks to the way copyright termination works, even someone who puts their works into the public domain could pull them back out of the public domain after 35 years.

99 comments

  1. What's unclear? by drinkypoo · · Score: 5, Interesting

    Along with your work, you provide a promise not to sue, giving up all your rights to the work in question. It's clearly illegal to do that with the intent of changing your mind later.

    It would be nice if there were a no-copyright-registration process, which would certainly remove any and all doubt. But it's not like it's unclear, now. If there's no promise not to sue, look for something else.

    --
    "You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
    1. Re:What's unclear? by sribe · · Score: 5, Informative

      Along with your work, you provide a promise not to sue, giving up all your rights to the work in question. It's clearly illegal to do that with the intent of changing your mind later.

      Well, since the armchair /. lawyers will soon descend upon your post spouting off about how you can't enforce anything without a contract, let's just go ahead and get this posted: Promissory Estoppel ;-)

    2. Re:What's unclear? by PPH · · Score: 4, Funny

      Well, since the armchair /. lawyers

      I object, your honor. Opposing counsel is clearly trying to prejudice the jury with facts.

      --
      Have gnu, will travel.
    3. Re:What's unclear? by Theaetetus · · Score: 1

      Along with your work, you provide a promise not to sue, giving up all your rights to the work in question. It's clearly illegal to do that with the intent of changing your mind later.

      Well, since the armchair /. lawyers will soon descend upon your post spouting off about how you can't enforce anything without a contract, let's just go ahead and get this posted: Promissory Estoppel ;-)

      However, as your link notes, the measure of recovery wouldn't be the same as if the contract existed, since there would've been no negotiation and awarding full use of the work would be unjust enrichment. Instead, a court would probably say that there are no royalties due for past infringement, but that you don't get an unlimited right going forward to keep using the work.

    4. Re:What's unclear? by Anonymous Coward · · Score: 2, Interesting

      This is where the useful legal concept of estoppel comes into play.

      If someone makes a promise, and that promise induces someone else to act in a way they might not have acted otherwise in reliance on the promise, and the actions taken later cause a potential legal detriment to the party that relied on the promise, then the doctrine of estoppel requires the promise to be enforced, even if there was no binding legal contract. It's not required that there be proof of intent to deceive - even if it's "changing your mind," you can't necessarily enforce legal rights you promised away and others relied upon, even if in theory you retained those legal rights.

      In this case, if you promise to never enforce copyright restrictions on a work you author, and I rely on that promise to use, extend, or republish that work, even if in theory you have the legal right later to enforce those restrictions, you are generally estopped from enforcing them on me to my detriment (for example, if my OSS project built on and extended your OSS'ed code). The fact that you in theory can pull back your copyright rights, that doesn't mean your public, relied on promise to not enforce copyright can be pulled back with it.

      Not to say that "what the law requires" and "what I can tie you up in court with for 10 years" are necessarily the same (witness SCO's ghost STILL trying to assert some claims based on copyright ownership that they've been found in court to never have possessed).

    5. Re:What's unclear? by ShanghaiBill · · Score: 4, Informative

      It's clearly illegal to do that with the intent of changing your mind later.

      Did you RTFA? The whole point is that it IS legal to change your mind later, and no amount of promises, or guarantees, or written contracts can change that. You cannot give up, sell, or renounce, your right to change your mind, no matter what you do.

    6. Re:What's unclear? by Anonymous Coward · · Score: 2, Interesting

      (Ah, one of the armchair lawyers speaks...)

      Actually, if you make a covenant to not do this, you'll find that you'll not be able to get *ANYTHING* out of anyone on this.

      Just because the law allows you to revoke assignments, it doesn't preclude you pinning them in a manner that it's effectively un-revokable.

      For example, if you're issuing a covenant to give unlimited publication and derivative works rights, the copy you put into such a license is revokable. The follow-ons, if they've got derivative works in them, CAN'T be. You don't want to be sued for breach of agreement and barred due to Promissory Estoppel- and the court's liable to hold the GPL licensed stuff is out in the wind. Do remember, a world-class Copyright Law professor with a JD dreampt up several of the prominent FOSS licenses, thinking just precisely about these things we're discussing and pretty much nuked the paths to them from orbit. In and of itself, should give you pause on remarking on the subject in the manner you just did- sadly, this *IS* /. and it does seem to have more than it's fair share of poo flinging monkeys...

    7. Re:What's unclear? by mbone · · Score: 1

      IANAL, this is not legal advice, but I agree with your argument.

      The only ways out I see would be if your heirs tried to convince a judge you were not legally competent to make the PD assignment at the time you made it (or, of course, if someone came along and said they also had some rights in the work in question, say by being co-creators). So, there would always in practice be a little risk, but after 35 years? That seems like a stretch.

    8. Re:What's unclear? by Richard_at_work · · Score: 2

      What happens when someone makes the promise they were never legally allowed to make? See the case of WASTE, where nullsoft released it under the GPL without the permission of their owners - someone made a promise they weren't legally allowed to make...

    9. Re:What's unclear? by drinkypoo · · Score: 1

      Did you RTFA? The whole point is that it IS legal to change your mind later, and no amount of promises, or guarantees, or written contracts can change that.

      Ok, so I RTFA, and I see "One right that all creators have is to undo copyright transfers and licenses after thirty-five years have passed, under some conditions." [...] "Copyright termination means that any license, including a perpetual public license, can be revoked." But that's not what I'm talking about. I'm talking about making a promise not to sue for use of the work, which is not the same thing as offering a license for the use of the work. If you make an explicit and public promise not to sue, separately from any licensing, that's different from offering a license and then revoking it later. Licensing something for any use is not the same as placing it in the public domain, and promising not to sue for any use seems the only way to effectively actually do that otherwise.

      This is a threat to the GPL, the MIT, and other [F]OSS licenses. But it's not a threat to the public domain.

      I do think that we should have a public domain registry, where we can explicitly give up our right to a work in perpetuity. But why should we need one? We already have a legal concept which should permit accomplishing the same thing.

      --
      "You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
    10. Re:What's unclear? by mbone · · Score: 1

      It's clearly illegal to do that with the intent of changing your mind later.

      Did you RTFA? The whole point is that it IS legal to change your mind later, and no amount of promises, or guarantees, or written contracts can change that. You cannot give up, sell, or renounce, your right to change your mind, no matter what you do.

      Just because some article says something doesn't make it so. If you want to play this game, I would strongly recommend you get competent legal advice.

      (As it happens, I have received legal advice in this area, and it sure didn't agree with what you said.)

    11. Re:What's unclear? by mbone · · Score: 1

      IANAL, but I believe that the actual rights-holders would need to go to court to establish their rights, and, yes, if they won a judge could invalidate promises made by the other parties. Likewise, I believe a judge could declare an actual rights-holder incompetent, and invalidate their grant of rights. A last-minute deathbed grant of rights into the PD might be subject to that kind of attack, if the heirs thought it wasn't proper, or the dying author / composer was no longer competent.

    12. Re: What's unclear? by Anonymous Coward · · Score: 1

      The federal copyright act makes termination rights inalienable. And the specific intent of congress was to permit people to change their minds, regardless of any contracts. For example, if the work turns out to be way for valuable than they thought when they signed the contact.

      And because of this, it's prima facie unreasonable to rely on somebody's promise not to exercise their termination rights. Reasonable reliance is the cornerstone of promissory estoppels and is therefore unavailable.

    13. Re: What's unclear? by Threni · · Score: 1

      Yep, that's valid everywhere in the world because one law applies everywhere.

    14. Re: What's unclear? by Anonymous Coward · · Score: 0

      For a second, I was wasn't sure if you had stated this with serious intent, or if it had merely been caustic cynicism..

    15. Re:What's unclear? by Kjella · · Score: 1

      Depends on the nature of the relationship between the one who released it and the owner. Most likely it would go under "agency by estoppel" which means that the principal is bound by the actions of their agent as long as a reasonable person would believe it is within the agent's authority. There would be no reason for anyone to believe that the original release was unauthorized, so nobody is liable for copyright infringement even though Nullsoft lacked actual authority. Whether you can stretch this into using it as if it were properly licensed in perpetuity despite notices to the contrary is more questionable, besides not all jurisdictions may have the same estoppel laws as the US. But it wouldn't be an unreasonable claim that you found a code snippet apparently under the GPL and used it in good faith that it was authorized by Nullsoft.

      This would not apply if some random employee decided to post the source code though since it's clearly outside his scope of authority, nor would it apply if hackers released the code with a fraudulent license since there's no principal-agent relationship, so in practice you might still become liable through no fault of your own. Making a process to declare something public domain won't change that, since it would be just as false as licensing it under the GPL. Or like buying stolen property, even though you had no reason to believe it was stolen it won't matter if the owner shows up and proves it's his. But not if you went to his store and bought it by a clerk who didn't have the authority to make that kind of sale.

      --
      Live today, because you never know what tomorrow brings
    16. Re:What's unclear? by Anonymous Coward · · Score: 0

      In this case, they're not barred by law to make them to begin with, and other law and jurisprudence actually prevents the law they're pulling out of their asses being used in the manner which they're describing it. The law in question is used when you're talking about assignment (Into the public domain or under select FOSS licenses is NOT assignment, just for starters.) and only allows you to take back things...when you're allowed to by OTHER law.

    17. Re:What's unclear? by penix1 · · Score: 1

      And If Chewbacca lives on Endor, you must acquit!

      --
      This is a sig. This is only a sig. Had this been an actual sig you would have been informed where to tune for more sigs.
    18. Re: What's unclear? by Anonymous Coward · · Score: 0

      This simply isn't true as far as the vast majority of judges and attorneys are concerned. Any derivative work inherently includes copyrighted material. If I terminate my license you can no longer make new copies of your derivative work. The only thing the law still grants you is the right of first sale (e.g. of your inventory), but that only works for tangible goods because the copying has already ocurred.

      Moglen and Stallman know this. Some of Eben Moglans claims are aspirational--he's hoping the law will change. If he were your attorney he would have to disclose this.

      Never believe everything a lawyer tells you about the law unless he's your legal counsel and thus has a duty to you personally. This is especially true of academics, who use their pulpit to try to change the law by manipulating the scholarly discourse.

      I say this as somebody who would like to see Moglan's aspirations come true. But they just won't happen without legislative intervention. His opinions are too far removed from the current state of the actual law to ever have a chance of an appellete court adopting his views.

    19. Re:What's unclear? by Anonymous Coward · · Score: 0

      While it may not technically be considered a contract, as such, from a legal perspective if you say "I hereby license this work CC0" it certainly is a contract from a moral perspective. You will get no sympathy from me if try and weasel your way out of it.

      (captcha: please)

    20. Re:What's unclear? by gronofer · · Score: 1

      Is there any law against breaking a "public promise"? If you ignore the promise and sue somebody, would the promise make any difference to the outcome? It's not a licence or a contract.

    21. Re: What's unclear? by Anonymous Coward · · Score: 0

      If you can terminate the license. In this case, the license issued is usually of the: non-revocable, permanent, world-wide, forever and forever type. These licenses are not revocable. The court holds these up routinely.
      You can continue to make all the copies of your derivative works that you see fit and pass on those rights as you see fit.

      Now, someone who does not have an existing license, you may stop them from making new copies of your existing work as you did not grant them a license. However, they can get copies of the derived work and go from there.

      Once it's been put out there as non-revocable, with all rights available to any other rights holder, its pretty hard to stop.

      Note, this is not the same as public domain. I've still got to find the guy you gave the non-revocable license to.
      Which I don't need to do for public domain. So 1: No, you can't take it back, and 2: its not a complete free for all.

    22. Re:What's unclear? by wonkey_monkey · · Score: 1

      Which law enshrines the sanctity of a "promise"? Does the law even recognise such a thing as a promise in such broad (non-contractual) terms?

      Obviously, if you provably made the promise and then break it by going around suing, that's going to strongly count against you in (civil?) court. But that doesn't mean that the breaking of the promise was illegal.

      --
      systemd is Roko's Basilisk.
    23. Re:What's unclear? by Aighearach · · Score: 1

      Since it isn't a contract or a license, the promise gets evaluated using traditional common law analysis. If a reasonable person would believe the promise, and breaking the promise would be unfair to you, then it is unlikely they will be able to sue you over your continued reliance on it, especially if some time has passed where lots of people know about about and make use of the promise. It isn't so much that they are held to their promise as that breaking it makes it hard for them claim to be harmed, to claim to be in need of justice to make them whole. IANAL

    24. Re:What's unclear? by Aighearach · · Score: 1

      Their theory seems to rely on "public domain" having been invented by the Copyright Act. Therefore, they can find no provision except copyright expiry for it exist.

      I recall that a number of years ago on slashdot there was some lawyer explaining it, but I'd have to find my medicine to go looking for a link.

    25. Re:What's unclear? by Anonymous Coward · · Score: 0

      NO ONE HERE UNDERSTANDS, I ve spent YEARS without finding people who would actually UNDERSTAND what you all are talking about. Simply NOT ENOUGH QUORUM FOR THIS TO BE EVEN REMOTELY RELEVANT FOR THE NEXT... anything coming NEXT for this anthropoidal specieses. And this is NYC.

  2. Perhaps ... by PPH · · Score: 4, Interesting

    ... its a matter of pro-actively placing the copyright into the hands of a government entity chartered to hold it for the benefit of the public. Such an entity would have to be carefully created, with clear definitions of 'public benefit' and by-laws written to prevent takeover by special interests. The down side would be the creation of another bureaucracy that would need a funding source to operate. And would eventually leverage itself into a rent-seeking entity to serve its directors and other minions.

    --
    Have gnu, will travel.
    1. Re:Perhaps ... by Svartalf · · Score: 1

      No, if you're doing your legal documents right, it does place it into the Public Domain as intended. How? Promissory Estoppel prevents such an act from even being ran up the flagpole on an infringement suit. If you actually DID this, just because you can revoke assignments, etc. doesn't give you carte-blanche to actually DO it the way they're describing there.

      Without covenants in place as part of the agreement, yeah. There's a problem. With them, this is really nothing more than the nattering of someone trying to make a vastly bigger deal of things than is really there.

      --
      I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas
    2. Re:Perhaps ... by PPH · · Score: 2

      OK, so then who supervises the term of the public domain copyright? Who stops the content theives from downloading your stuff, claiming the rights to it, submitting bogus take-down notices and claiming 'public' IP as their own?

      Prommisory estoppel (if I understand it correctly) only obtains an agreement from the creator not to pursue claims. It does nothing to prevent some third party from doing so, unless the creator or an assignee actively defends the public status of the rights.

      --
      Have gnu, will travel.
    3. Re:Perhaps ... by Anonymous Coward · · Score: 0

      Nobody stops this happening with regular copyrighted works either. In fact it happens literally all the time.

    4. Re:Perhaps ... by Anonymous Coward · · Score: 0

      Who cares? If it's genuinely public domain, other people (thieves or otherwise) can do anything they like with it. It's not legal to claim copyright over something that was already in the public domain (because misappropriating someone else's work doesn't constitute a creative act), but that's a problem for the courts and defendants, not the original creator.

      If you want to release something to the public while retaining the power to prevent someone else illegally trying to profit from it, maybe you should look into the CC licenses instead of public domain.

    5. Re:Perhaps ... by Aighearach · · Score: 1

      The law never prevents, it only takes action afterwards. Various parties may apply various laws if you engage in deceptive practices that harm the companies receiving these hypothetical bogus and covetous notices.

    6. Re:Perhaps ... by PPH · · Score: 1

      Various parties may apply various laws

      And who funds these various parties? Taking on a for-profit entity that scoops up public domain IP and then chases you off of it isn't going to be cheap.

      Defending IP isn't like real property. Where a simple call to the police that your clapped out Honda has been stolen will mobilize police forces willing to expend many times its value and put the general public at risk chasing it down.

      Let me know when I can call 911 to report my photos stolen and expect an armed response.

      --
      Have gnu, will travel.
    7. Re:Perhaps ... by Aighearach · · Score: 1

      Somewhat of a bait-and-switch. First you propose it as a problem that the law doesn't prevent law-breaking, then you switch to complaining that private parties would seek justice if the law is broken.

      I'll give you a hint; if you don't have money for a lawyer to take action against parties that are harming your online business by sending false takedown requests for public domain works... then your website is tiny, and you're not actually losing money from drowning in false notices. The problem solves itself. Companies that have enough traffic to be in that situation can first of all adjust their process of handling takedown notices based on the level of false submissions they get. Second, if it is done persistently, or by parties trying to gain commercially from said actions, they can sue them because they already have staff lawyers.

      No, you can't call 911 to report "stolen" photos you placed in the public domain and then tried to take back your promise on. But that has nothing to do with the scenario you had presented.

      As for "a for-profit entity that scoops up public domain IP" that is just sort-a "woowoo" kindof, "the truth is out there" stuff. There is no scoop for that. They won't have the IP simply by sending false takedown requests, and the takedown process won't result in them owning anything. They might get things temporarily removed, but they'll be restored after the process gets to the next step.

  3. Precisely. by Anonymous Coward · · Score: 1

    Without the covenant to not sue and to not revoke the assignment explicit (and in some cases, implicit) in most of these, then yeah, there's the problem they claim.

    With it, you've got a binding deal that can be used to explicitly challenge any of the stuff they're talking to in TFA. Under the CC0 license, you'd be pretty much protected in using it because while there's the law that says they can revoke- you've *WAIVED* that in a manner that the parties so affected by your malfeasance (yes...you made a binding agreement that you would NOT do this- and there's very, very few laws where you're prohibited from doing that...) that would be as damaging or worse than an IP rights suit over claiming your rights back would be. At the minimum, your suit wouldn't last very long- most jurisdictions don't take kindly to that sort of Bad Faith on your part.

    So...use the GPL/LGPL/MPL or CC0 stuff with confidence.

  4. Heh... by Svartalf · · Score: 5, Interesting

    Bingo!

    You can't make promises or covenants of this nature with the intent of even remotely considering to revoke them. Your successors are also bound to them. Typically someone will bring up Promissory Estoppel and then raise Bad Faith- and then move to dismiss the case you brought against them...and most typically get it.

    --
    I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas
    1. Re:Heh... by Anonymous Coward · · Score: 0

      Successors, deciding for others again. What was that again with a contract that is, void? :)

    2. Re:Heh... by Jane+Q.+Public · · Score: 1

      Bingo!

      You can't make promises or covenants of this nature with the intent of even remotely considering to revoke them. Your successors are also bound to them. Typically someone will bring up Promissory Estoppel and then raise Bad Faith- and then move to dismiss the case you brought against them...and most typically get it.

      Says who? IANAL, but there's a hole in your reasoning. And that gaping hole is: putting something in the public domain is NOT a "contract"!!! By definition a contract, by ancient common law and still today, requires "consideration" on both sides. When you put something in the public domain, you receive no consideration. So it's not a contract by any stretch of the imagination. To quote the article you referenced:

      Certain elements must be established to invoke promissory estoppel. A promisorâ"one who makes a promiseâ"makes a gratuitous promise that he should reasonably have expected to induce action or forbearance of a definite and substantial character on the part of the promiseeâ"one to whom a promise has been made. The promisee justifiably relies on the promise. A substantial detrimentâ"that is, an economic lossâ"ensues to the promisee from action or forbearance. Injustice can be avoided only by enforcing the promise.

      Note the second sentence. Particularly the part about "promise that he should reasonably have expected to induce action or forbearance of a definite and substantial character on the part of the promisee". That is a description of "consideration". In the case of placing your private works in the public domain, there is seldom any consideration. So there is no "expectation" of return on the part of the donor, which as your own article stipulates is necessary for promissory estoppel to occur.

    3. Re:Heh... by Anonymous Coward · · Score: 0

      That is a description of "consideration".

      No it is not. In this context, it simply means that by declaring something to be in the public domain, you should reasonably expect people to use it as though it is in the public domain. That is, for them to act differently to how they would if it were not declared as such. Which is pretty much the whole point.

      Also, from the same second sentence you quote: a "gratuitous promise" is, by definition, one made without consideration.

    4. Re:Heh... by Jane+Q.+Public · · Score: 1

      No it is not. In this context, it simply means that by declaring something to be in the public domain, you should reasonably expect people to use it as though it is in the public domain.

      There is a lot of gray here. For example, some "public" licenses promise that a work will remain in the public domain. Not all do.

      Real-world example: rights to the Java programming language were "purchased" by Oracle while the license was public domain. However, Oracle chose to make later versions not entirely public domain. The original license was not sufficient to guarantee the whole product would be public domain in perpetuity.

      There is currently no law in the U.S. which requires something in the public domain to remain that way, unless it is so stipulated in the license. There are a number of famous cases in which something that was once public domain is no longer, even though that thing remained otherwise unchanged.

      EFF and others are working to change that. But until it is changed, the concept of Promissory Estoppel only applies in some cases of public domain licensing.

    5. Re:Heh... by Jane+Q.+Public · · Score: 1

      I would also like to point out that the cited page about promissory estoppel did in fact use the word gratuitous, but then went on to explain situations that meet the definition of consideration on the part of the promissee.

      Their actual example is clearly a case in which there was to be consideration on both sides.

      Perhaps it is not a good example.

    6. Re:Heh... by Anonymous Coward · · Score: 0

      Quite apart from the fact that Java has never been in the public domain (hint: there's no such thing as a public domain "license"), my point, which you've conscientiously ignored, was simply that a) the sentence you claim describes consideration does not, and b) its wording explicitly rules out the possibility of consideration, by the very definition of a gratuitous promise.

      Anyway.

      There is no law in the US that allows something to be appropriated from the public domain without modification (at least under copyright - there may be some limited scope under trademark law), and therefore everything in the public domain can and does stay there. It is possible to modify something in the public domain so that it becomes a derivative work, in which case it can be copyrighted. Again, there is no such thing as a public domain license. If it has a license, it's not in the public domain.

      I think you'll find most or all of your "famous cases" involve things that were formerly under free or open license, not things that were in the public domain. Java certainly does. And even in the case of Java, the "new" license doesn't invalidate the older, freer ones for previous versions. If you want the newer versions, though, you need to accept the newer license.

      And what doctrine prevents Oracle changing the terms of a gratuitously applied free license (it's free, so they get no consideration) on the older versions? You guessed it, promissory estoppel.

    7. Re:Heh... by Jane+Q.+Public · · Score: 1

      hint: there's no such thing as a public domain "license"

      This is a patently ridiculous assertion. A copyright holder can voluntarily place a work in the public domain (that's what GPL and Creative Commons are all about, for example). In fact that's what this whole discussion is ABOUT. Have you read any of it?

      There is no law in the US that allows something to be appropriated from the public domain without modification

      Another patently ridiculous assertion. There doesn't have to be a law "allowing" it. That's not how the law works. It would not be possible only if there were a law against it.

      The FACT is, not many years ago Congress passed a law that put millions of works that were formerly in the public domain back under copyright. That is the incident that caused EFF to start pushing for a law that would make that no longer possible.

      So you are WAY out in left field.

    8. Re:Heh... by Anonymous Coward · · Score: 0

      GPL and Creative Commons aren't public domain licenses.

    9. Re:Heh... by Jane+Q.+Public · · Score: 1

      GPL and Creative Commons aren't public domain licenses.

      Technically that is correct, which was the point of this whole topic. But that is the basic intent and they are about as close as it comes.

    10. Re:Heh... by Anonymous Coward · · Score: 0

      So technically it's correct to say that there is no such thing as a public domain license. If it has a license, it's not in the public domain.

  5. What if.. by kheldan · · Score: 1

    What if I come up with some original concept (for sake of argument let's say it's something revolutionary and significant. I wish!) and I decide that I want as many people all over the world with it as I possibly can. So I post it on the Internet in as many places as I can, post it on USENET (which I haven't used myself in years, so I'll also say 'or USENET's modern equivalent). Let's say I'm very successful in this, and millions, maybe billions of people have my idea in their hands, for free. Are they saying that this still doesn't qualify as 'public domain'? Are they saying that some corporation can scoop up this idea, copyright it, claim it's now their Intellectual Property, and sue everyone else who has it and uses it? Clarification, please. I can't believe there isn't a way to do an end-run around these stupid copyright laws such that you can't intend something to be free to everyone without there being a bunch of legal paperwork 'licensing' it to everyone for free.

    --
    Are YOU using the TOOL, or is the TOOL using YOU? Think about it!
    1. Re:What if.. by Anonymous Coward · · Score: 0

      They've got to prove they came up with the idea first. If you've got proof to the contrary, they're guilty of slander of title trying to claim what you're hypothesizing here.

    2. Re:What if.. by PPH · · Score: 2

      First to file. Not first to invent.

      --
      Have gnu, will travel.
    3. Re:What if.. by HiThere · · Score: 1

      First to file only applies, I believe, if you also independently invent. And in any case that's patent law, not copyright law.

      --

      I think we've pushed this "anyone can grow up to be president" thing too far.
    4. Re:What if.. by Anonymous Coward · · Score: 0

      And in any case that's patent law, not copyright law.

      The OP's situation seems pretty clearly a patent issue to me, despite that (s)he said "copyright". Although I'd hope that posting the details publicly in that way would count as prior art.

  6. Heirs. by khasim · · Score: 2

    The problem with that is whether your promise would also apply to your heirs.

    Once something becomes worth $X there will always be people trying to make money off of it. The larger X is, the more people like that there will be.

    1. Re:Heirs. by nitehawk214 · · Score: 1

      This goes into the "should we honor the will of a dead person" argument.

      Reason dictates "yes, unless they are an asshole about it." But the law kind of says "yes, as long as the will is legal and actually enforceable." I would assume this applies to copyright. If someone had a no-copyright-copyright in effect, then upon their death, doesn't that make the thing public domain.

      I am sure if there were any heirs that cared about the copyright, they would manage to get their hands on the thing before the person dies.

      --
      I'm a good cook. I'm a fantastic eater. - Steven Brust
    2. Re:Heirs. by Anonymous Coward · · Score: 1

      In most cases, successors in interest due to merger or total purchase are liable to the obligations of the predecessor by law.

      Inheritance constitutes the same action as a merger in the view of the Courts and Law. As such, they're obligated to honor those covenants, period.

      The only situation wherein that you're not liable for the obligations is when you sell the asset in question, but keep the liabilities. In this, though, even if you HAD such an action transpire, the seller is in violation of deceptive trade practices in most jurisdictions (esp. in the US...) in which case they're legally obligated to transfer the liabilities because of the nature of the covenants in question. In most of those situations, what transpires is that the owner of the assets are now told they're liable to the same and they can honor the covenants or repudiate the whole deal (including ownership of the asset) by recission and other means in Tort and Contract law.

      It flatly WON'T go the way people keep pretending it will on this under most of these hypothetical situations.

    3. Re:Heirs. by Anonymous Coward · · Score: 0

      If someone had a no-copyright-copyright in effect, then upon their death, doesn't that make the thing public domain.

      No, as no-copyright-copyright is an offer by the decedent to not apply copyright. Without legal sanction (i.e. official recognition of no-copyright-copyright), the natural result is for it to die with the decedent. In order to last after death, someone would have to assign copyright to an entity that will maintain the no-copyright-copyright. This could be the heirs if they agreed, but a simpler way is to assign it to an entity that exists only for the purpose of no-copyright-copyrights.

      Either way, it wouldn't hurt to put it in the will, which expresses the wishes of the decedent in a way that makes clear what is supposed to happen in the case of death. Note that wills can rescind previous bequests, so a separate agreement may be nullified by a later will. I.e. if you make a no-copyright-copyright document today and a will tomorrow, the will may override what you said in the no-copyright-copyright document.

    4. Re:Heirs. by Anonymous Coward · · Score: 0

      Didn't the company Disney extend basic copyright, not too long ago? Or did they have a plea to have it extended for them? ;) I better ought to read up on the facts again, since this came from the back of my head. Cheers, and a good evening.

    5. Re:Heirs. by Anonymous Coward · · Score: 0

      Me again, that was probably the Mickey Mouse Protection Act then. My goodness, I almost feel an urge to address it as the Sonny Bono Copyright Term Extension Act, for reasons of inward peace.. :/

  7. Really? by mbone · · Score: 1

    Specifically, the PK post highlights that thanks to the way copyright termination works, even someone who puts their works into the public domain could pull them back out of the public domain after 35 years.

    Really?

    So, I should infer that all of those "irrevocable" open source licenses are meaningless, because the grantor of the rights could just change their minds? Somebody sure should let RMS know.

    IANAL and all that, and this is for sure not legal advice, but when I have gotten such advice, it was always along the lines of, be careful what you place in the public domain, because you won't be able to change your mind. I am sure I would not want to go in front of a judge and say something along the lines of, "yes, I told people this was public domain, but they were silly to think I actually meant it."

    1. Re:Really? by Svartalf · · Score: 3, Interesting

      Considering that RMS didn't dream these licenses up, but rather Eben Moglen, you might want to contemplate who knows more about this... The law professor that actually teaches on this subject or someone claiming that there is a right of revocation in there that's effectively free of Promissory Estoppel and the like on the subject. Just because there's a law on one side doesn't mean other laws don't cause OTHER, equally bad problems on the subject and effectively preclude the hypothesized notion out of box.

      --
      I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas
    2. Re:Really? by Svartalf · · Score: 1

      (And for wont of mod points... The group in question just simply isn't contemplating what you talk to, promissory estoppel, and all sorts of other problems opening up that particular can of worms would be for someone stupid enough to TRY it.)

      --
      I am not merely a "consumer" or a "taxpayer". I am a Citizen of the State of Texas
    3. Re:Really? by Anonymous Coward · · Score: 0

      The hallowed logical fallacy of appeal to authority. Read the recent FSF brief in Google v. Oracle. Their logic is fallible. Since a software if licensed under commercial and gpl, java is essentially always, GPLed. If there is no commercial license then it is always gpl licensed. So, no commercial software user can enforce it.

      A classic fallacy of if a then b, which does not equate to if b then a. Just because it's gpl licensed doesn't mean, there can be no infringement. There can always be a third state of infringement, without a license.

      GPL should not be used if you have a commercial license.

    4. Re:Really? by Anonymous Coward · · Score: 0

      Somebody sure should let RMS know.

      RMS is well aware of the limitations the GPL faces, the technical workarounds put into the gcc architecture just to fill holes left by copyright/licensing law are legendary (and the reason many compiler devs. migrated to the llvm framework). FSF backed projects also often involve copyright assignment where the contributors have sign over their rights so the FSF remains the sole owner of any work.

      yes, I told people this was public domain, but they were silly to think I actually meant it.

      Never do that, just ask Disney to make a film about it, instant copyright violation by anything based on a similar premise.

    5. Re:Really? by BarbaraHudson · · Score: 1

      When there is money or power involved, you will ALWAYS find sufficient lawyers ready to argue both sides of any question. Why not use the tools already at hand - copyright law - to just register your copyright (assuming the value of the work is actually worth something) and then sell unlimited, transferrable unrestricted rights to use, alter, and reproduce your work for $0.00.

      --
      "Transparent" is a shit show that trades on every stereotype going. A man in drag is NOT a transsexual.
  8. I can see where this is coming from by Opportunist · · Score: 1

    To give something and demand nothing in return? That's just so Un-American!

    --
    We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
  9. What you mean is ... by YoungManKlaus · · Score: 1

    in US law which 95% of the world population does not give shit about.

    1. Re:What you mean is ... by Anonymous Coward · · Score: 0

      In other countries often the situation is worse.

    2. Re:What you mean is ... by iggymanz · · Score: 2

      You are ignorant, see this wikipedia article and note the percentage of world's land in blue on map: http://en.wikipedia.org/wiki/B...

      And then there is the this, note part of world in dark green on map: http://en.wikipedia.org/wiki/T...

  10. Remember, you will die. by Anonymous Coward · · Score: 0

    I don't understand being able to revoke public domain rights. Mostly because as you get older one thing becomes clear: an individual is not likely to live another 35 years. Sure, modern medicine is awesome and everything but there are many things that medicine can't fix that will probably get you way before then.

    How many people have revoked it? How many had the chance? It's moot...

    Maybe it's simply there to make it seem more open.

  11. Patent fight in India by SternisheFan · · Score: 1

    Interesting medical patent issues arising in Inndia against the US companies.... http://timesofindia.indiatimes...

    1. Re:Patent fight in India by HiThere · · Score: 1

      That, however, is not only unrelated to public domain, it's also unrelated to copyright. That's a patent law disagreement.

      --

      I think we've pushed this "anyone can grow up to be president" thing too far.
    2. Re:Patent fight in India by SternisheFan · · Score: 1

      Yes, I knew that when I posted it wasn't on topic exactly. Still, seems like the rest of the world doesn't agree with U.S. patent laws.

  12. Is this really a problem? by binarstu · · Score: 4, Insightful

    Both of the linked articles present this as if it is a major problem requiring federal congressional action. Several other posters here have pointed out, though, that actually pulling something back out of public domain via this copyright "loophole" might actually be extremely difficult or even (practically) impossible.

    It is perhaps telling that neither article presents a single example of a piece of work that was initially donated to the public domain by its author(s) and then removed from the public domain via this mechanism. So, does anyone know if this has ever actually happened? Given that neither article gives even one such example, I suspect this is not really a problem at all from a pragmatic point of view. Attempting to "fix" it by asking Congress to pass new copyright legislation could even backfire, because the additional provisions and changes that would inevitably get added to any such bill might end up creating new, real problems.

  13. Why? Capitalism by Anonymous Coward · · Score: 0, Flamebait

    Capitalism is all about stealing common goods and privatizing them. It's called primitive accumulation. Of course a capitalist system won't help you reverse that process.

  14. Just post it by petes_PoV · · Score: 1
    Simply stick your work on a website somewhere. No names, no declarations, no email address, no attribution -- just the stuff.

    Why make things harder than they have to be?

    --
    politicians are like babies' nappies: they should both be changed regularly and for the same reasons
    1. Re:Just post it by Anonymous Coward · · Score: 1

      Because it will be copyrighted by default. You just CANNOT take somebody else software and use it as you want. To allow software being distributed and used freely you need EXPLICIT permission to do this. Free software licenses (GPL, BSD, etc.) are such explicit permissions done in one way or another.

    2. Re:Just post it by Shados · · Score: 1

      Because then people don't have any assurance that they won't get sued for using it.

    3. Re:Just post it by Aristos+Mazer · · Score: 1

      Without a license statement, I have to assume that your copyright still applies. It is similar to a chain of evidence for legal proceedings -- I have to document that any image I use in my work didn't just come from some place that claimed it was a public domain image but actually can be traced back to the original author and confirmed as public domain. It's a real bitch some days, which is why the Internet is often not helpful at all for image searches and why people still end up paying large sums of money for image libraries that are vetted as "cleared for commercial reuse".

  15. Overblown nonsense. by fyngyrz · · Score: 2

    From TFS:

    ...there's no clear way within the law to actually declare something in the public domain. Instead, the public domain declarations are really more of a promise not to make use of the exclusionary rights provided under copyright.

    Ok, so the statement is about a clear way to put something in the public domain. Here's how you clearly put something in within the law: (1) You declare it public domain. (2) Now, keeping it there: You simply exercise a level of ethics even a 5 year old understands: You don't go back on your word, because (for one thing) that would make you a major fucktarded scumbag. (3) Whatever it is, is in the public domain, stays there, totally within the law, end of story.

    Sometimes the ideas of law -- which is a hugely flawed instrument -- and the result of actions taken/not-taken get all confused in people's minds. If you want to put something into the public domain, do so, and subsequently just exercise a minimal level of personal honor, and you can be sure that your intent will carry through. The only one who can screw this up is you, and to do that you have to act in a particular way which guarantees you are knowingly acting like a dickhead. So when this clown tells you that you can't get it done, he is impugning your honor, not describing reality, and the only reaction you should have to that is annoyance.

    Given that you are honorable and simply don't go back on your word, the user has nothing to worry about either.

    So this really isn't about law. This is about your behavior.

    Now, I grant you that most an entire generation having grown up with the idea that it's ok to steal IP, and the toxic idiocy of the "information wants to be free" crowd additionally muddying the waters, and the proliferation of people who just can't seem to keep their word, one might have reason to be cynical about this. But remember: TFS is saying that it is hard to put something into PD. It isn't. There's no reason you or I have to act without honor, and there are many reasons, starting from simply sleeping better at night, that we ought to act with honor.

    Yes, I've got stuff out there that is PD. No, I will never, ever revoke that status. See how easy that is? 100% effective, too.

    --
    I've fallen off your lawn, and I can't get up.
    1. Re:Overblown nonsense. by Jiro · · Score: 4, Insightful

      Here's how you clearly put something in within the law: (1) You declare it public domain. (2) Now, keeping it there: You simply exercise a level of ethics even a 5 year old understands: You don't go back on your word, because (for one thing) that would make you a major fucktarded scumbag.

      That doesn't work. Maybe a year later you get sued for something and the court orders that your copyright be transferred to the person suing you as compensation. Or you go bankrupt and your copyright is sold to your creditors. Or, instead of being sued, you die and the copyright goes to your heirs. And the new owner doesn't consider himself bound by your word.

      Furthermore, even if none of that happens, it's still not equivalent to public domain because even if you keep your word, someone who wants to use your work has no way to read your mind and know that you're the kind of person who keeps his word. So he has to act as if you could withdraw permission at any time even if you never would.

    2. Re:Overblown nonsense. by Anonymous Coward · · Score: 0

      ianal, but once the permission's granted it can't be revoked (unless an explicit allowance is made). http://commons.wikimedia.org/wiki/Commons:License_revocation?uselang=en-gb

    3. Re:Overblown nonsense. by mrchaotica · · Score: 1

      Now, I grant you that most an entire generation having grown up with the idea that it's ok to steal IP, and the toxic idiocy of the "information wants to be free" crowd additionally muddying the waters, and the proliferation of people who just can't seem to keep their word, one might have reason to be cynical about this.

      You've gone off the rails here. The "information wants to be free" crowd thinks as such precisely because information naturally (i.e., without the interference of law) is in the Public Domain to begin with. Creating a strawman argument claiming that they'd somehow twist that position to justify stealing from the Public Domain is not only offensive, but patently absurd.

      --

      "[Regarding the 'cloud,'] ownership was what made America different than Russia." -- Woz

  16. 17 U.S. Code 117 by Anonymous Coward · · Score: 0

    As far as computer programs are concerned, the articles seem to speak of a potential threat with little to no real effect.

    This is because US copyright law already places some limitations to exclusive rights in 17 U.S. Code 117. So, even if a copyright holder (or its heirs, or whoever) were to attempt to use this loophole to revoke their PD promises, and for some reason a court should find that promisory estoppel provisions and jurisprudence do not apply to the case, the licensees would still be protected under 17 U.S. Code 117 against some claims the copyright holder would make, such as:

    1. The ability to keep a copy of the software in question.
    2. To study the work.
    3. To transfer said copies to third parties, provided they are exact copies.
    4. To make adaptations of the work.
    5. IANAL, but although adaptations need the copyright holder's permission to be distributed, arguably a patch can be distributed on its own, providing most of its content is the patcher's original work, as that would be a separate work on its own.

    Considering points 1-5, it seems like the provisions already in the law make it very much like public domain, except that works could not be sub-licensed but exclusively (i.e., a license cannot be turned into five licenses without the consent of the copyright holder.) However, considering that the number of lawful copies obtained while a 'public domain' license was in place is probably quite high (not to mention hard or impossible to account for), the inalienability of termination rights seems moot for works using permissive licenses.

  17. also, easy to abandon your rights, one sentence. by raymorris · · Score: 1

    Also, a commentor on TFA pointed out the requirements for abandonment of copyrights are:

    1. the plaintiff intended to surrender [ownership] rights in the work; and

    2. an act by the plaintiff evidencing that intent.

    So to effectively put it in public domain permanently, simply write:
    I surrender any rights to this work.
    Done.

  18. Genies, Bottles by Anonymous Coward · · Score: 0

    How about just writing a law terminating copyright after a certain period, regardless of the creator living? More importantly, lets turn all those copyright "ownerships" into exclusive or inclusive licenses to the work, depending of the value to the society. Such a written law overturns all previous written and case-law starting from the enactment, of course. *hears the explosive "that's unpossible" scream*

  19. Impractical by American+Patent+Guy · · Score: 1

    It will never work, because the receiving party of a work declared to be in the public domain cannot verify that the declaring party had the right to do so. Such declarations could be made erroneously or falsely: just having a registry of such declarations doesn't remove the possibility that there is a true copyright-holder out there who might want to pursue his rights later. All the receiving party could to is claim not to have engaged in willful infringement, because he relied upon the declaration.

    Imagine that I registered the song "Lucy In the Sky With Diamonds" and all its recordings into the public domain. As I am not the Beatles, I have no right to do that, and that registration would be false. Using this kind of registry would only confuse the potential market of licensees and clog up the courts with law suits.

  20. My solution by coldmist · · Score: 1

    My proposed solution for this problem in general, is to require not the starting date of copyright on a work, but the expiration date. No more extensions for Mickey, etc. After that date, it is clear that it is in the public domain, no matter what.

    In this case, the person simply puts 2014 or some previous year, and it will be out of copyright by virtue of it being 'expired'.

    It's not perfect in all cases, but it would prevent a lot of confusion and extensions that come from the current legal nightmare.

    --
    Don't steal. The government hates competition.
  21. There will always be stupid lawsuits by Tony+Isaac · · Score: 1

    Some people will sue McDonalds when they spill hot coffee on themselves. Some people will sue a building owner when they trip and fall. Some people will sue to try to get back their IP that they clearly gave away to the public domain. We can't stop stupid people from being stupid.

    Only a (stupid) lawyer could love a copyright loophole like the one described in the article. But we can't live in fear of these people. If somebody dedicates their work to the public domain, we have to trust that they will keep their word. Sometimes they don't, but sometimes people don't honor legally binding contracts, either.

    1. Re:There will always be stupid lawsuits by Aighearach · · Score: 1

      Uhm, wait... "that guy" is still telling the McDonalds hot-coffee thing, after all these years? Wow.

      http://en.wikipedia.org/wiki/L...
      Please read the section "Trial and Verdict."

      The Actual Facts about the Mcdonalds' Coffee Case

  22. Right to Copy ...vs...Greed. by Anonymous Coward · · Score: 0

    The right to copy is what copyright was all about. I can take what you created and make a copy for myself or my friend without restriction. But greed gets in the way. And so we are caught between the good of the individual and the good of society. And a mere 20 years (1 whole generation) is not nearly long enough. Its (currently) 70 years after the death of the author. If they had their druthers, it would be 7 millennia after the death of the great great grandson --not forever, but you can see it from there. Generations come and generations go, but copyright lasts forever. So right now, its illegal to read what someone wrote 140 years ago if the author died 70 years ago and lived to the age of 71 (wait one more year). So 2015 means something written in 1875 is just becoming legal. There were no cars then, no planes either. No telephones. Telegraph was still fairly new. No radio, no tv, no computers. Electricity wasn't that common yet. Steam was big, gas engines not so much. Einstein's birth was still 4 years away. Greedy copyright has kept generations from reading their natural social inheritance. And copyright owners bribe politicians and the years add and add and we are all the poorer for it.

  23. Need case history by jeremylichtman · · Score: 1

    It seems obvious that what is required is some case history - so why not provide it? Have somebody create a github repo with a document explaining the situation, have them officially withdraw permission, and have some users of the repo sue. Obviously, the whole thing would need to be funded somehow.

  24. Agen Vimax Asli by seoninja · · Score: 0

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  25. Inventions can be put in the public domain. by Ihlosi · · Score: 2

    Ironically, inventions can be put in the public domain by merely publishing them (which prevents them from being patented - prior art).

  26. Land Conservancy by Tokolosh · · Score: 1

    Every week there is a news report of a "conservation easement" whereby land owners give up their rights (not ownership) in perpetuity. There are usually tax benefits.

    How is this different to putting something in the public domain? Does it mean that Monty Burns' children can say they changed their minds and want their park back?

    --
    Prove anything by multiplying Huge Number times Tiny Number
  27. Get a copyright and donate it to CC by gatkinso · · Score: 1

    Seems like the best way to go about it in the framework of current law.

    However there is nothing that is stopping CC from becoming evil, so you take your chances.

    --
    I am very small, utmostly microscopic.
  28. I'll be blunt: by JCCyC · · Score: 1

    "Pull something back out of the public domain" should never ever ever be a thing, period.

  29. No bingo by Anonymous Coward · · Score: 0

    Look at "It's a wonderful life" for how something *public domain* can be snatched back.

    *Technically* a copy you took when it was PD (or licensed with estoppel on suing) would protect you from being sued, but you'd have to prove that the copy was not copied *subsequently*, when the code was no longer free of license. And even then, you will likely be sued and will have to pay up to defend yourself.

  30. You would still lose the rights by Anonymous Coward · · Score: 0

    Though they could not sue you for breech in that instance, you still lose the right for more copies, since the subsequent copies would be made with the knowledge they were not allowed.

  31. Comment removed by account_deleted · · Score: 1

    Comment removed based on user account deletion