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Re: Public Domain and Packaging

On Monday 18 July 2005 03:13 pm, Brian M. Carlson wrote:
> On Mon, 2005-07-18 at 11:45 -0700, Sean Kellogg wrote:
> > On Monday 18 July 2005 11:07 am, Brian M. Carlson wrote:
> > > What we *don't* want, is software that is copyrighted (which PD
> > > software isn't) and then without a license, because that gives us
> > > almost no rights whatsoever.
> >
> > There is no such thing as software that isn't copyrighted.  All original
> > expression that is fixed in a tangible form is immediately copyrighted
> > (at least, that's the U.S. rule).  There is still lots of debate as to
> > whether it is possible to disclaim that copyright...  but there is no
> > question that it is, at the moment of creation, copyrighted.
> False.  You, as a lawyer-to-be, should know better than to be imprecise.
> U.S. Government software is not copyrighted, and cannot be so,
> excepting, of course, the United States Postal Service, which is granted
> an exception under 19 U.S.C.

Sigh.  The original paragraph had a little parenthetical note about how some 
software is not actually copyrighted.  In addition to U.S. Government works, 
software that does not comprise expression is also non-copyrighted, as was 
discussed in the Lexmark case (more famously known for limiting the extent of 
the DMCA).  I foolishly took that note out because I hoped people would grant 
a bit of wiggle room so that I could get straight to the posters question.

> > Mr. Crowther is better off accepting he has a copyright and simply
> > attaching a COPYING file that says "I grant anyone and everyone an
> > irrevocable license to copy, modify, distribute, perform, display, or
> > engage in anyother act requiring my permission with this software."  Yes,
> > there are a host of legal questions with that as well, but it gets us way
> > closer to the pale than attempts to disclaim the copyright.
> As for non-government software, no one can force a monopoly upon another
> person if that person does not want it.  What Mr. Crowther can do is
> simply disclaim the copyright and never enforce it, even if he does have
> it under some theory of law.  If his heirs attempt to enforce it, they
> will be dilatory under the doctrine of laches.

Are you certain?  Obviously I can chose not to enforce my monopoly...  but I 
don't see why the government cannot force me to have one.  I have a whole 
host of rights under Tort law that I think are really extreme (like...  if 
you give me a pat on the back and I haven't given you permission, I have a 
suit.  Damages might be non-existent, but you have still violated my rights).  
Even though the rights are extreme, I cannot say that I don't have them...  I 
can only chose not to enforce them.

As for whether disclaiming is a better route to the Public Domain than an 
explicit license is...  well, something that I think will have to be resolved 
by a judge someday, because the arguments on both side are plentiful.  But 
laches...  you know, laches is a strange doctrine that is perhaps not the 
best doctrine to wave around in the IP world.  I've heard it invoked, but its 
not the kind of thing I'd want to hang my hat on.

Sean Kellogg
3rd Year - University of Washington School of Law
Graduate & Professional Student Senate Treasurer
UW Service & Activities Committee Interim Chair 
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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