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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.

18 of 99 comments (clear)

  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 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).

    4. 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.

    5. 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...

    6. 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...

  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 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. 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
  4. 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.

  5. 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
  6. 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.

  7. 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.

  8. Re:What if.. by PPH · · Score: 2

    First to file. Not first to invent.

    --
    Have gnu, will travel.
  9. 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. 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).