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

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.

Comments

What's unclear?

[drinkypoo]

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.

Re:What's unclear?

[Anonymous Coward]

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).

Re:What's unclear?

[Anonymous Coward]

(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...

Perhaps ...

[PPH]

... 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.

Heh...

[Svartalf]

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.

Re:Really?

[Svartalf]

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.