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
2nd Year - University of Washington School of Law
GPSS Senator - Student Bar Association
Editor-at-Large - National ACS Blog [http://www.acsblog.org]
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So, let go
...Oh well, what you waiting for?
...it's all right
...'Cause there's beauty in the breakdown