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Re: Some licensing questions regarding celestia

Quoting Nathanael Nerode (neroden@twcny.rr.com):

> Have you heard of the common law?

Oddly enough, I can't help noticing that your caselaw citations are missing.

> But Don Armstrong has a point: nobody but the copyright holder has standing 
> to sue.  If a court was convinced that the copyright holder had lost his 
> right to sue by making a public domain dedication, then effectively the work 
> *would* be in the public domain.

This assumes that the copyright holder has lost his right to sue (and,
moveover, any successors in interest).  And where are you determining
that, please?  As mentioned, I've seen no caselaw citations -- most
likely because none exist.

My best guess based on a pointer on OSI license-discuss[1] to some
halfway relevant cases (Micro-Star v. Formgen Inc., 154 F.3d 1107, 9th
Cir. 199 -- and Hampton v. Paramount Pictures Corp., 279 F.2d 100, 104,
9th Cir. 1960) is that voluntary copyright abandonments (such as "public
domain dedications") _may_ (if adjudicated to be effective) merely
create a defence against infringement claims by the person making that
declaration (equitable estoppal), leaving unclear whether that defense
would be effective against successors in interest.  Or not.  The
question does not seem to have been adjudicated.

> So, what do you recommend for someone who really *wants* to put something in 
> the public domain?

Do you intend that as a real, non-rhetorical question?  If so, I
recommend BSD licence with no advertising clause (or MIT/X).  I mean,
why would you _not_ want the shield against warranty claims?

And if that person objects that, no, he really, really wants to destroy
his copyright and make the code be actually (or at least effectively but
for certain so) public domain, then I would advise him that it's an
imperfect world, and nobody knows how to do that without the risk of
creating very troublesome legal questions for the remaining duration of
the copyright term.

> If you really think that this is a serious problem, have you contacted 
> Creative Commons (http://www.creativecommons.org), who promote public domain 
> dedication?

Oddly enough, a UK acquaintance of mine (from OSI license-discuss) was
in contact with several of the notables (including Prof. Lessig) whose
names are cited as founders, to see if they endorsed such site contents
as the "Public Domain Dedication" at
http://creativecommons.org/licenses/publicdomain/ .  He reports[2] that
they do not, and apparently the matter is the subject of some
controversy.  I have not yet inquired with them directly, though I may
get around to doing so.

> No such thing.  Warranties are incurred by distribution and stuff like that, 
> not by ownership.

(Please note that my use of the term "owner" was intended to connote
"author" or "issuer", in this context.)  If you are trying to assert
that being the identifiable author of a piece of code that is claimed to
have done harm would not subject you to liability claims, I would
suggest you are mistaken.

[1] http://www.mail-archive.com/license-discuss@opensource.org/msg06439.html

[2] This was in a related discussion, which may have been on the mailing
list, on sci.crypt, or on talk.politics.crypto, but I'm unable to find
the reference at the moment.

Rick Moen                                     Age, baro, fac ut gaudeam.

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