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Re: New 'Public Domain' Licence

On Tuesday 07 June 2005 06:10 pm, Jeff King wrote:
> I think there are actually two issues we're talking about. I was
> mentioning a line of reasoning I have seen here[1], which indicates that
> we must be explicit in crafting PD-ish licenses, because our heirs can
> bring suit, saying that the original author "couldn't have really meant
> to do something so clearly to his detriment."

Hmm...  specious reasoning if you ask me.  Under the copyright act your heirs 
get one chance to revoke your assignments, regardless of how crazy the 
assignment may be, and that's codified in (s)203, Termination Rights.  The 
argument that is being made in the e-mail you referenced sounds like an 
unconscionable argument...  which is often made, but rarely sustained in the 
contracts setting (it requires the clause to make the court "BLUSH"... yes, 
blushing, a legal concept).  I don't believe such a doctrine exists in IP 
outside of the IP misuse doctrine...  but that's a doctrine that deals with 
attempting to leverage IP to gain more rights than granted under the statute 
(like...  I grant you use of patent, but you agree that I am the exclusive 
owner of the patent for the next 40 years, even though the patent will expire 
in 20).  I don't see how that would be applicable in public domain setting.

But to be clear, there is no such thing as "dedication to the public 
domain"...  its just not possible under the copyright statute.  Same goes for 
patents...  you have to be very careful if you want to intentionally void 
your patent and "dedicate it to the public." All of these near-public domain 
licenses are attempting to create PD-like conditions, but they are still 
copyright licenses and are subject to termination and the like.

> You are, as you say, talking about termination rights. But wouldn't
> those be just as much an issue here as they are with, say, the GPL?

Oh yes, termination rights are certainly an issue with the GPL.  However, you 
can't exercise termination rights on a work unless you control 50% of the 
work.  I suggest that most projects that will be around in 35 years are of 
such size that no one person will have true majority control.

> -Peff
> [1] http://lists.debian.org/debian-legal/2005/04/msg00485.html

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