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What Is Public Domain? 282

Posted by timothy
from the and-such-small-portions dept.
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."
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What Is Public Domain?

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  • by Anonymous Coward on Wednesday June 12, 2002 @12:33PM (#3687538)
    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.
    • 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.
      • by lynx_user_abroad (323975) on Wednesday June 12, 2002 @01:50PM (#3688118) Homepage Journal
        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 [dvdcca.org]. 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
        • Sorry, that does not prevent you, assuming you still own the copyright from releasing it on another uncontrolled media.
          • You misunderstand. If I'm the copyright holder, I own the copyright to the work and all of it's derivatives. I still own the copyright to every derivative even if the only derivative left in existance is in your posession. I can't prevent you from selling it (first sale doctrine) but I can prevent you from publishing it. For example, I can claim copyright ownership of a work (and enforce my right to prevent further derivatives) even if I only made one and I gave it to you.

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

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

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

        • 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.
  • by tiltowait (306189) on Wednesday June 12, 2002 @12:40PM (#3687604) Homepage Journal
    When works pass into the public domain [unc.edu]

    Growth rate of the public domain [harvard.edu]

    Not whoring, at 50, yadda yadda, just thought this may be useful
  • by www.sorehands.com (142825) on Wednesday June 12, 2002 @12:45PM (#3687642) Homepage
    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 (Score:3, Insightful)

    by YanceyAI (192279) <yanceyai@yahoo.com> on Wednesday June 12, 2002 @12:47PM (#3687661)
    "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?

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

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

      I don't think it's a worthwhile project.
  • by Hygelac (11040)
    I must be asleep today, but what is so difficult about defining Public Domain? It has to be the simplest form of copy(right|left|middle) there is. The article seemed to bounce all over the place trying to make the issue confusing, but I'm confused about the confusion. ???
    • Me too. Maybe it's just me, but if you have a problem with public domain because you can't figure out what it means, then maybe you're too stupid to use it, and people really shouldn't care if you do or don't.

      Is there anything wrong with accepting that sometimes people are too stupid to do/understand something? Should anybody really waste time trying to educate them?
  • Why does he think you can put code into the public domain?

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

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

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

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

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


      Neither does sourcecode. Someone needs to execute it. Just as somone needs to execute the action of lighting a match/stove/house on fire. Yes bad things can happen, but don't blame the cookbook/sourcecode if you're not careful. It's about time users take responsibility for some of their actions. e.g. Burn down the house while cooking, it's your fault. Send a million viruses because you didn't install anti-virus/used MS Outlook, it's still your fault.
    • If you own a forest, somebody wanders into it, gets lost and dies is it your fault?
      If I right a bs malloc library that occasionally wipes boot sectors and don't force it upon others is it my fault?
      And if I abandon my car in my backyard (yes I have a broken down car in my backyard, yes front yards are different) I will not be forced to dispose of it. If I abandon it on a highway I'm imposing upon the owner of the highway. If I give out information I impose upon nobody. That's why apocalyptic visionaries can roam the streets with foreboding sandwich-boards, but yelling fire in a theatre is illegal. Offering vs. forcing.
      • In many urban jurisdictions, you can't store a non-runnable car on your own property. Not even in your backyard, because it's considered an "attractive nuisance." Even in a rural area, if it's leaking oil the local environmental protection agencies may pay a visit.

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

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

        And for the record, it's *falsely* yelling fire in a theater that was used as an analogy in that famous WW-I case. Only an idiot would argue against warning people of a real fire in an era predating non-flammable upholstery (theaters could go from a spark to raging inferno in a matter of seconds), but likewise only an asshole would yell fire knowing that the ensuing panic would also injure many people.
    • To dispose of a car or a house, you have to fire up big machinery, compress the car, buldoze the house, and recycle the raw materials. To dispose of information, you hit the delete button and save yourself $0.25 in storage space.

      That's why.

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

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

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

      We're quite fucked if it becomes illegal to make source code freely available. If you offer a beginner's C++ tutorial on your site, do you need to have people accept a EULA and/or pay you money if they want to see the "Hello, world" example?
      • Are you sure you don't own the street? Typical practice in the US is that you own the rights to the property to the middle of the road, but you must allow anyone who wants to, the right to pass on the road without charge, and any utility to use the side of the road for cables/pipes.

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

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

        • Those are easements, and most properties have numerous easements.

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

          I'm in a townhouse, and our property extends into two adjacent creek beds/flood control channels, including the bike paths. The city will run a snow plow over the paths, but we're responsible for replacing downed trees.
      • I didn't say you couldn't offer software for free, I said it may not be possible to offer it and then *totally* walk away from it.

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

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

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

        P.S., if you leave your car in your own (closed) garage you haven't abandoned it, by definition. However some (urban) jurisdictions or HOAs do require that all vehicles stored on your property be runnable, properly licensed and insured, etc.
    • Your analogy to cars isn't quite right...we're talking about the creator of the software not the end user. When a car is abandoned, they go after the owner of the car, not the manufacturer. Toyota has no liability for one of their cars that becomes abandoned. The sofware author is the car manufacturer in your analogy, not the car's owner.
    • You can't abandon a car, you'll eventually be tracked down and made to pay for proper disposal.

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

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

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

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

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

    • Bad.

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

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

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

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

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

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

      Yet another example of a poor analogy leading to a poor conclusion...
  • An idea, once expressed belongs to the world, aka, the public domain. Copyright was invented as a way to temporarily allow creative people to profit from expressing their ideas in writing, song, etc. Unfortunately, copyright has become a nearly permanent thing to enrich greedy corporate robber barons at the expense of the public domain, which soon may be a footnote in history Hollywood, the RIAA et al are trying to convince legislators that copyright is a natural right. I sure hope we can stop them, but since we can't grease palms the way the corporations do, it won't be easy.
    http://www.dontbuycds.org
    http://www.uncov eror.com/radio.htm
  • Public Domain (Score:4, Insightful)

    by Craig Maloney (1104) on Wednesday June 12, 2002 @12:52PM (#3687695) Homepage
    I think I heard about this "Public Domain". It only applies to things that were created before the 20th Century, right? :)
    • (I suppose you're referring to The Mouse? Heh.) It can apply to things that have been created too recently for copyright to have expired ... if the author chooses to place them in the public domain rather than to hold the copyright.
  • by bluGill (862) on Wednesday June 12, 2002 @12:59PM (#3687735)

    Jessica Litman [wayne.edu] 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.

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

  • by reverse flow reactor (316530) on Wednesday June 12, 2002 @01:00PM (#3687739)
    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

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

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

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

      cleetus
  • by Henry V .009 (518000) on Wednesday June 12, 2002 @01:01PM (#3687743) Journal
    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.
    • You what? Do you have no clue whatsoever what copyright law represents?

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

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

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

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

      Lastly, free software does not exist to provide jobs, it does not exist to provide money, it exists to provide software. If you want a job rehashing the same shit over and over again, go ask microsoft. If you just want the software, programmed once by a handful of people, and left as-is because it already works, that's what free software does. We are not a sweat-shop, we do not exist 'to provide jobs'.
      • Copyright law exists to make even more stuff public-domain, simply by giving authors an incentive to write more.
        Copyright law exists to give authors an incentive to write more, correct. However, it is public domain agnostic. There isn't a large practical difference between information that remains under copyright forever, and information that remains under copyright for a period of a century. Copyright law exists to create a situation where the information is available, whether or not you must pay for it.

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

        However, balance is desired. All monopolies are harmful, even the the beneficial ones that we need. I support a copyright restriction to 20 years rather than the current century or so a copyright can get on average.
        Of course, current US copyright laws don't say that, but then current US copyright laws are illegal.
        U.S. copyright laws are illegal? Enlighten me. The DMCA is illegal. But the current copyright laws appear to obey the letter of the law. (The argument currently being made that the laws are not specifying a limited time because Congress will just extend it in the future is very shaky legally.)
        Secondly, writing something without copyright attached is not "charity" any more than owning a home and not shooting any who approach it is "charity" -- copyright is a gift by the law which an author only need take if they intend to use their monopoly on distribution by attacking others who distribute it.
        Owning a home and letting anyone come there to sleep is charity however.

        Your gift argument is silly. Even in a world with no governments and no copyright law it would still be charity. You are working to create something that you give away to everyone. That is charity. Many books from the time period before copyright are charity. The authors made no profit, and we have benefitted immensely from their charity.
        Lastly, free software does not exist to provide jobs, it does not exist to provide money, it exists to provide software.
        Hence the charity angle.
        • The argument currently being made that the laws are not specifying a limited time because Congress will just extend it in the future is very shaky legally

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

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

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

          The point I'm trying to make is that without IP laws we don't fall into a situation where I can't copy a book - we fall into a situation where I can do whatever the hell I want to with that book, and you have no say about it.
          • Your mistake is in thinking that public domain is not the natural order of IP.
            It would be a mistake if I had either thought or said that. I'm not sure where you got that from my post.

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

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

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

            I don't see our current copyright laws getting thrown out anytime soon.
            • Ok, I'll take you to task for that: Imagine that the next government specify that copyright exists for a LIMITED time of 37 x 10 ^ 99 years,...

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

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

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

                Yeah, I think 37x10^99 years would get overturned. But 90 years? Especially when everybody in Europe does the same thing.
        • Secondly, writing something without copyright attached is not "charity" any more than owning a home and not shooting any who approach it is "charity"
          Owning a home and letting anyone come there to sleep is charity however.
          Case 1: Sometimes people write software (or other intellectual artifacts such as, say, furry trek pr0n) "for themselves", without interest in profiting from it in any other way. In such a case, allowing other people to use this artifact (without offering support) costs the original author nothing and does not inconvenience him (until he is sued for making Kirk an ocelot).

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

          The first case, due to the fundamental difference between physical and intellectual artifacts, is not comparable to a home-owning example (at least up until the legal action). The second case, ok, maybe. You could call it "charity" if you focus on the "other people receive intangible benefit" aspect (and if you consider furry trek pr0n to be a benefit). Or you could call it "enlightened self-interest" if you focus on the "author receives intangible benefit" aspect (and if you consider a reputation in the furry trek pr0n community to be a benefit). But I think I'd rather call it "just something that some people do for reasons of their own" so as not to have to decide whether this is really a win for anyone.
          • I'll grant you that Case 1 isn't charity.

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

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

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

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

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

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

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

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

                I just had the idea for another exception. Know anyone interested in helping me out with a non-charitable open source software project? I was thinking of creating a P2P free proxy net to break China's internet censorship scheme. Could be useful for some other things as besides...
  • by jcsehak (559709) on Wednesday June 12, 2002 @01:01PM (#3687745) Homepage
    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 [eff.org], 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 [rootrecords.org], 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.
    • I think you gave up all hope of artistic integrity when you allowed people to take your music and remix it and manipulate it even as audio. Once the notes are out of order it's not your vision any more, it's just a blob of media and nobody respects it.

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

      What if I went to the city art museum and decided to chop up one of the Picassos and rearrange it because I thought it looked better?
      • It's MY statement, not theirs. They can go write something of their own if they have something to say.

        What if most of the 30,000 [everything2.com] possible "statements" have been used up [baen.com]?

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

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

          Therefore, any alteration destroys the original intent.
          • In music the notes ARE the original

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

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

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

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

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

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

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

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

            I strongly suggest you quit posting on this subject until you learn what the hell you're trying to talk about.
          • Therefore, any alteration destroys the original intent.

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

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

        I have no problems with someone chopping up my work and making their own artistic statement, even if it was I thought it was total crap and I didn't agree with it. I just don't want people using my work (or bits of it) to promote their non-artistic goals, be they racism or ABC's new fall lineup.
      • So I guess you don't consider mash ups [guardian.co.uk] valid art/mustic.
      • 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.
    • If you release a song into the public domain, it exists there for eternity. Sting can't come along and re-copyright that song and then sue you for playing it. The only thing that Sting could do would be to record the song with his own bass riffs and copyright that particular rendition of it. So you couldn't copy his CD single, but anyone could still sing the song.

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

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

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

      Except that doing so would be fraud.

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

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

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

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

      You may charge a fee for the physical act of
      transferring a copy, but the fee shall be no
      more than the cost of the media and associated
      shipping charges, unless you obtain express
      written permission from the original author(s).
      • Wrong. Waiving your copyright would not give anyone else the right to copyright it.

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

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

        I thought that was a standard open-source thing. When I bought my Debian CDs, they were $5. Of course, companies like Red Hat can charge lots of dough for support, but as I understand it, you're not allowed to charge for the sale of free software you simply downloaded and repackaged. But please correct me if I'm wrong.
        • You are completely and utterly wrong.
          You can charge whatever you like for
          GPL'ed work.
          You just aren't all that likely to get
          very much if the person can get it
          cheaper.
        • I thought that was a standard open-source thing. When I bought my Debian CDs, they were $5. Of course, companies like Red Hat can charge lots of dough for support, but as I understand it, you're not allowed to charge for the sale of free software you simply downloaded and repackaged. But please correct me if I'm wrong.

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



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

    • Not only that, but Sting would be free to copyright them, so I would have to get his permission before releasing an album of my own songs!
      Either your concept of public domain is screwed up, or mine is. IANAL, but AFAIK, a song's music arrangement and lyrics may be put into the public domain. Copyrighted recordings may be made of the music and lyrics. That doesn't give the performer the copyright to the music and lyrics; it only gives the performer the copyright to that recording. For example, I can't get a copyright to all performances of Beethoven's Fifth Symphony by recording my performance of it. Nor would Sting be able to claim copyright of your works. But if I go around selling CDs with burned copies of the Philadelphia Orchestra performing Beethoven's Fifth, I will be infringing the Philadelphia Orchestra's copyright.
    • 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 [expressivefreedom.org] 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 [expressivefreedom.org] 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.
      • In other words, our creative freedom requires that we respect and defend the creative freedoms of others, even those with whome we vehemently agree.

        *sigh*

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

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

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

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

      but with music it's not that simple.

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

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

      See above comment about PGP and SSH...

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

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

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

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

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

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

      Furthermore, your second point is in error. While other artists certainly could rerecord your music (Disney does this all the time with fairy tales) it doesn't prevent you from releasing the original. (and in fact, there are plenty of other cartoon adaptations of fairy tales that leech of off Disney's publicity for _their_ adaptation) It can't work the way you describe -- then the copyright would be secured originally to someone not the author, which is grossly unconstitutional.
  • by bramcohen (567675) on Wednesday June 12, 2002 @01:09PM (#3687804)
    BitTorrent [bitconjurer.org] (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.

    • Oh how the computer industry matrix has made people afraid of freedom. Or maybe they just want a pill to go with things.
    • Is BitTorrent basically the same thing as the transport layer of MojoNation [mojonation.net] (apparently discontinued, but with parts still alive as MNet [sf.net]>?
      • BitTorrent was written using experience gained writing the transport layer of Mojo Nation, however, there are hardly any shared concepts and very little (hopefully soon to be no) shared code.
    • I haven't read the code, but I don't use Python. To "clean-room" that file, you would need it written in Python from a description? I could do it in Perl, which you could port. How long/complex is the code?

      As for legal disclaimers, the ALL CAPS is indeed ugly, Unfortunately, it's not pointless -- many laws require that certain disclaimers must be presented in all caps to be valid. (Yes, it's stupid; people get used to the caps and still tend not to really read it and realize what it says.) If you change those disclaimers from ALL CAPS to more readable mixed case, you may inadvertantly negate some of the legal protection they're meant to provide. (IANAL; this is not legal advice!)
  • by tlambert (566799) on Wednesday June 12, 2002 @01:20PM (#3687880)
    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
  • Bit Torrent (Score:2, Interesting)

    by NitsujTPU (19263)
    No offense, but I can see why people would shy away from supporting a product that causes the end user to support the distribution medium of the company in terms of server bandwidth. Not only is is quite possibly a good way to spread viruses, but also it puts undue burden on the customer.

    If I had to chose between Visio and Rational Rose (ick on both), but Rational required me to mirror their software on my machine as a distribution medium, I would go with Visio.
  • by vrassoc (581619) on Wednesday June 12, 2002 @02:03PM (#3688188)
    I'm just speculating here, but maybe the resistance to Cohen's concept is more the nature of the concept itself, rather than the fact that he's trying to give away the client software.

    I, for one, will always be suspicious of a piece of software that potentially opens my computer and network to unauthorised entry.

    Cohen claims that he is trying to establish a peer-to-peer file exchange protocol. Well, he should publish the protocol then. If it is worth using there will be a multitude of free, well tested and proven clients from reliable sources written for it in no time. How do I know what his software does? It could be dumping all my spreadsheets (databases? source code?) somewhere, for all I know.

    I know that this could be true for any Internet client software, but at least they work on well defined protocols and are usually tried and tested and offered by reliable sources by the time they reach me.

    Publish the protocol. Write an RFC. Let the community test its usefulness and the software will take care of itself.

    Personally I think people just don't want to share their work in that way. Remember that Napster et al gained its popularity because they could be used to easily share bootleg binaries, seemingly, without fear of prosecution for the owners of the servers, because they didn't host the pirated stuff. In the case where people want to share genuinely free files, there is nothing stopping Cohen from simply starting a repository for such material that people can access via FTP.

  • by anthony_dipierro (543308) on Wednesday June 12, 2002 @02:25PM (#3688349) Journal
    I like public domain, but I don't want someone to take my software (or writing), make a few changes, and then claim copyright on what is essentially mine. So I came up with the QingPL [inbox.org]. It gives all the benefits of public domain, except that you can't create derivitive works without giving others the same rights.
  • by dwheeler (321049) on Wednesday June 12, 2002 @03:13PM (#3688793) Homepage Journal
    Legally, "what is public domain" is a relatively easy question to answer from the point of view of copyright law. If a work (software, book, music, etc.) is expressly released to the public domain by its owner(s), or its copyright has expired, then it's in the public domain. You can't give away what isn't yours, and other laws still apply (e.g., if the software requires a patent that is valid in your country, the patent still exists).

    But even open source software / free software is almost never released as "public domain" software from the legal perspective. In my paper More than a Gigabuck: Estimating GNU/Linux's Size [dwheeler.com], I examined the lines of source code in Red Hat Linux 7.1, and only 0.2% of the lines of code are in packages labelled as ``public domain''. See section 3.5 for a discussion about this:

    There may be several factors that account for this. First, if a developer wishes to get credit for their work, this is a poor ``license;'' by law anyone can claim ownership of ``public domain'' software. Second, there may be a fear of litigation; both the MIT and BSD licenses permit essentially arbitrary use but forbid lawsuits. While licenses such as MIT's and BSD's are not proof against a lawsuit, they at least provide some legal protection, while releasing software to the public domain provides absolutely no protection. Finally, any software released into the public domain can be re-licensed under any other license, so there's nothing that keeps public domain software in the public domain - any of the other licenses here can ``dominate'' a public domain license.

    I believe the second reason is the most important one. In a suit-happy world, a small amount of legal protection is worthwhile.

If the code and the comments disagree, then both are probably wrong. -- Norm Schryer

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