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Re: Public Domain and Packaging

On 7/18/05, Sean Kellogg <skellogg@u.washington.edu> wrote:
> 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.

And in fact the US Government is not prohibited from seeking to
register and enforce copyrights abroad.  See Florian's citation from
the House Report in
http://lists.debian.org/debian-legal/2005/04/msg00169.html and my
discussion at http://lists.debian.org/debian-legal/2005/06/msg00002.html
of whether the US Government could copyright its works in, say, Italy.

> 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.

Precisely.  But you can issue a binding promise not to attempt to
enforce a given right in court, subject to limitations in statute and
common law which may vary by subject matter.  The vehicle for such a
promise is called ... wait for it ... a contract.  And as copyright
infringement is a statutory tort, it is no surprise that copyright
license is, always and only, a term in a contract.

> 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.

Basically, do you want your licensees to have a real license agreement
to work with, or do you want them to be stuck with some lame equitable
estoppel argument based on a unilateral declaration of intent?  Keep
in mind that, when ongoing forbearance is needed and there is a
serious defect in contract formation, "reliance to one's detriment"
will only save you insofar as you _have_ relied to your detriment
prior to the attempted revocation of grant and it really _would_ be an
undue burden to cease and desist.  AIUI neither one will give you an
escape clause from statutory limits on what promises can be held
against a copyright holder (such as the 17 USC 203 termination

Note, however, that one of the consequences of treating a copyright as
intangible property is that _ownership_ of a copyright can be given as
a gift with no need for continuing performance and hence no
possibility of revocation (except if fraudulently induced, etc.). 
This isn't quite bulletproof; the statutory termination clause also
applies to assignments; but otherwise it can be used to construct a
pretty thorough self-straitjacket, at a non-trivial cost in money and

Does it _matter_ to you that the world know it's safe to treat your
work as public domain?  Charter a non-profit trust to hold copyrights
on the public's behalf, write it into the charter that it will never
seek to enforce a copyright it holds, fund a trusteeship annuity with
the full-service bank of your choice, assign the trust your copyright,
reaffirm the assignation in your will.  Done, except for the loophole
in the termination loophole:  you can't be prevented from changing
your will to remove the reaffirmation, leaving your personal heirs
with the termination interest.

To go any farther, you need to set it up so that your non-profit uses
your own money to hire you to do the work.  Sound absurd yet?   I for
one would just as soon live under a legal system where that sort of
sham exchange is discouraged.  The cult leaders and rip-off artists
out there will _always_ be better than the mere altruists at designing
dodges around legal limits on how badly one can screw oneself by
accepting an unwise contract.

As for laches, I agree 100% that it is not to be relied on as a
defense against a sincere plaintiff.  It's basically an escape clause
for judges faced with plaintiffs who are trying to game the legal
system and its potential for near-infinite delay, thereby parlaying an
opponent's peccadillo into a huge windfall.

- Michael

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