Why We Still Can't Really Put Anything In the Public Domain 99
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.
What's unclear? (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.
Re:What's unclear? (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 [thefreedictionary.com] ;-)
Heh... (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.
Overblown nonsense. (Score:3)
From TFS:
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'
Re:Overblown nonsense. (Score:5, Insightful)
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.
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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 Domai
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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 ex
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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 p
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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
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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.
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Their actual example is clearly a case in which there was to be consideration on both sides.
Perhaps it is not a good example.
Re:What's unclear? (Score:5, Funny)
Well, since the armchair /. lawyers
I object, your honor. Opposing counsel is clearly trying to prejudice the jury with facts.
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And If Chewbacca lives on Endor, you must acquit!
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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 [thefreedictionary.com] ;-)
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.
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(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 t
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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...
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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.
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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 usi
Re: What's unclear? (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.
Re: What's unclear? (Score:1)
Yep, that's valid everywhere in the world because one law applies everywhere.
Precisely. (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 bind
Heirs. (Score:3)
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.
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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
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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 tr
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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
Re:What's unclear? (Score:5, 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.
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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, sepa
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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 c
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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.)
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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.
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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.
also, easy to abandon your rights, one sentence. (Score:2)
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.
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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.
Land Conservancy (Score:2)
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?
Perhaps ... (Score:5, Interesting)
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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 someon
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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 [theregister.co.uk] 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.
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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.
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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.
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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.
What if.. (Score:2)
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First to file. Not first to invent.
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First to file only applies, I believe, if you also independently invent. And in any case that's patent law, not copyright law.
Really? (Score:2)
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
Re:Really? (Score:4, Interesting)
Considering that RMS didn't dream these licenses up, but rather Eben Moglen [wikipedia.org], 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.
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(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 can see where this is coming from (Score:2)
To give something and demand nothing in return? That's just so Un-American!
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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... [wikipedia.org]
And then there is the this, note part of world in dark green on map: http://en.wikipedia.org/wiki/T... [wikipedia.org]
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That, however, is not only unrelated to public domain, it's also unrelated to copyright. That's a patent law disagreement.
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Is this really a problem? (Score:5, 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.
Just post it (Score:2)
Why make things harder than they have to be?
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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.
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Because then people don't have any assurance that they won't get sued for using it.
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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
Impractical (Score:2)
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
My solution (Score:2)
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.
There will always be stupid lawsuits (Score:2)
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 ke
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Uhm, wait... "that guy" is still telling the McDonalds hot-coffee thing, after all these years? Wow.
http://en.wikipedia.org/wiki/L... [wikipedia.org]
Please read the section "Trial and Verdict."
The Actual Facts about the Mcdonalds' Coffee Case [lectlaw.com]
Need case history (Score:1)
Inventions can be put in the public domain. (Score:3)
Get a copyright and donate it to CC (Score:2)
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'll be blunt: (Score:2)
"Pull something back out of the public domain" should never ever ever be a thing, period.
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