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Re: New 'Public Domain' Licence

On Tuesday 07 June 2005 06:47 am, Andrew Suffield wrote:
> On Mon, Jun 06, 2005 at 04:58:53PM -0400, Jeff King wrote:
> > > _Probably_ a Dutch judge would treat the above statement as a
> > > license that means "do whatever you want", since he's supposed to
> > > reconstruct the intention of the author from such a vague statement.
> > > And "do whatever you want" seems the intention.
> >
> > Yes, it is the intention. How about a license like:
> >   Do whatever you want.
> > The only argument I have heard against this is that you (or your heirs)
> > may later say "Oh, but I didn't really mean *anything*." Which seems
> > silly to me, but perhaps that's why I'm a programmer and not a
> > lawyer.
> Lawyers are pretty silly people, yes.

Perhaps lawyers are silly, but I think the law is getting a bad rap in this 
conversation.  The issue is not with "evil heirs" but with termination rights 
and market forces.  Consider for a moment a budding artist who writes a 
really great song.  Since she's unknown she has to distribute it through a 
label, who has all of the market power in the deal.  The result of the deal is 
she is poorly compensated.  The song goes on to be a humongous hit and the 
record label makes a ton of money while our poor artist remains pennyless.

To resolve this sad and not uncommon story, Congress granted the copyright 
holders an inalienable termination right which allows the author to revoke a 
license or assignment 35 years after the transfer (its a 5 year window after 
35, so at 40 the chance to terminate expires).  Which means that if the 
evil record label wants to continue to make money from the song it has to 
renegotiate the terms with the author or her heirs...  presumably the 
popularity of the song puts the author in a much better position, market 
power wise, and will net the author a better deal than the first time 'round.

Note that this right is inalienable...  under no circumstances can the author 
give away or renounce the right.  The reason is the same policy as above.  
If the author could sell the termination right, then the evil record label 
would require such a sale and still give the same lower level of 
compensation.  By making in inalienable, the law ensures the author cannot be 
dooped into doing something foolish for a short-term benefit.

Of course, this means that it is practically impossible to put something into 
the public domain prior to the expiration of the copyright.  You really can't 
even wait 35 years after you release the software, because its 35 years from 
the grant...  and since you can't grant the software to "the public" you 
would have to wait 35 years with each particular individual before their 
license becomes truly irrevocable.

Certainly it is frustrating, but I think there are sound policy reasons behind 
the law.


Sean Kellogg
2nd Year - University of Washington School of Law
GPSS Senator - Student Bar Association
Editor-at-Large - National ACS Blog [http://www.acsblog.org]
c: 206.498.8207    e: skellogg@u.washington.edu
w: http://probonogeek.blogspot.com

So, let go
 ...Jump in
  ...Oh well, what you waiting for?
   ...it's all right
    ...'Cause there's beauty in the breakdown

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