Why We Still Can't Really Put Anything In The Public Domain… And Why That Needs To Change

from the make-it-happen-now dept

More than five years ago, we wrote about just how difficult it was to actually put something into the public domain legally. For years, we’ve said that all of our Techdirt posts (where we have the right to do so) are subject to a public domain dedication, but there’s nothing specifically in the law that says how or if you can really put something into the public domain. While you can make a public domain dedication or (more recently) use the Creative Commons CC0 tool to do so, there’s no clear way within the law to actually declare something in the public domain. Instead, the public domain declarations are really more of a promise not to make use of the exclusionary rights provided under copyright.

On the “public domain day” of Copyright Week, Public Knowledge has pointed out that it’s time that it became much easier to put things into the public domain. Specifically, the PK post highlights that thanks to the way copyright termination works, even someone who puts their works into the public domain could pull them back out of the public domain after 35 years.

As you may recall, termination rights cannot be signed away, and they were designed to allow copyright holders the ability to take back their work from whomever they licensed it to for the second half of the copyright’s term. We’ve long pointed out why this is a stupid concept (while finding it amusing to see the legacy copyright industry — mainly in the music space — desperate to try to pretend that copyright termination doesn’t really exist). But they do exist and they make a true public domain declaration effectively impossible:

Copyright termination means that any license, including a perpetual public license, can be revoked. This means, for example, that contributors to projects like Wikipedia (where an original contributor continues to own the copyright to her work, but licenses that copyright under a liberal license) can revoke that license. It also means that people who transfer actual ownership of their copyrights to stewards like the Free Software Foundation can claw back that ownership.

This might be tricky in practice, particularly when it comes to licenses, since the law requires that the original author give notice to all “grantees.” Does that mean everyone who has a copy of the work, and when does the thirty-five year clock start ticking for each of them? This could be very difficult to figure out when it comes to, for example, some popular free software projects. But it introduces an unnecessary degree of uncertainty to FOSS software projects generally, to Creative Commons-style licensed works, and so on, particularly those that use a formal transfer of copyright title, where there is only one grant to terminate, instead of potentially millions.

Public Knowledge is suggesting a rather simple fix: simply eliminate termination rights for public domain licenses, and also for other types of royalty free licenses like certain CC licenses or open source licenses:

But it would be easy to fix this. One way would be for Congress to eliminate termination for “public domain” licenses, and perhaps also for some kinds of public, royalty-free licenses like the Creative Commons licenses or the GPL. This path, rather than a full-on statutory acknowledgement of copyright abandonment, would allow authors to continue dual licensing while making a public domain license identical to the public domain in all other respects. It thus provides the benefits of a dedication to the public domain without taking away all of the benefits termination is supposed to provide (in the classic case, protecting artists who sign exploitative contracts with companies because they have so little bargaining power).

This is a simple fix, and because it’s so simple, don’t expect it to happen. In the meantime, more and more culture gets locked up, even when people like us try to add to the public domain.

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Comments on “Why We Still Can't Really Put Anything In The Public Domain… And Why That Needs To Change”

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31 Comments
Anonymous Coward says:

I could see how some cases of public domain dedication might not be clear, but it’s not really that difficult.

From 9th Circuit jury instructions:

“In order to show abandonment, the defendant has the burden of proving each of the following by a preponderance of the evidence:

1. the plaintiff intended to surrender [ownership] rights in the work; and

2. an act by the plaintiff evidencing that intent.”

http://www3.ce9.uscourts.gov/jury-instructions/node/277

Mike Masnick (profile) says:

Re: Re:

What is the worry, that someone is going to trick you that they put something into the public domain and then 35 years later terminate the grant and sue you? This is what we’re worried about?

I think the much more likely scenario is heirs of the original creator seeking a payday, who don’t have the same view on the public domain. Given how many stories we see of greedy heirs, this seems quite likely.

Anonymous Coward says:

Re: Re: Re:

Anyways, to get back to your point, wouldn’t this be based on who is the stated beneficiary of those copyprotections? For instance if I have money in a bank and I don’t state anyone as a beneficiary when I die where does that money go? Unless you draw up a will it maybe unclear who gets it. But wouldn’t a CC license imply that it is the will of the copy protection holder that the ‘public’ is the beneficiary?

John Fenderson (profile) says:

Re: Re: Re: Re:

“For instance if I have money in a bank and I don’t state anyone as a beneficiary when I die where does that money go?”

There is an established default inheritance chain that is used in these cases. Every state has their own rules, but generally everything goes to the surviving spouse if there is one, then to the children, then to more distant family members. The general rule of thumb used is the closest living relative inherits.

“Unless you draw up a will it maybe unclear who gets it.”

If there’s a dispute amongst the survivors, then things can get tricky. Fortunately, this isn’t usually the case.

Anonymous Coward says:

Re: Re:

The worry is that:
10 companies sue for everything
20 if it cannot be guaranteed, it can be sued
30 if it can be sued, stfu you cannot participate
40 if not participating gives companies power, goto 10

Since I had to explain the obvious to you, you now owe me your first born. By reading this message, you have agreed to this license.

Unbelievable ignorance on this board.

Anonymous Coward says:

UK Material from the Dark Ages Still in Copyright

And just one nice example of how material is prevented from entering the public domain is in the UK where anything pre 1970s unpublished is STILL in copyright. I bet those Middle Age monks, with no heirs, are thanking their lucky stars their works are still receiving copyright protection http://glasgow.stv.tv/articles/305986-national-library-campaign-with-cilip-to-reform-copyright-continues/

Anonymous Coward says:

To come back to how copy protection lengths negatively affect me I have a bunch of books (ie: textbooks, reference books, general knowledge books, some of them are 30+ years old and some are new) piled up taking up a lot of shelf space. If these books entered the public domain in a reasonable period of time they can all be freely available on the Internet and I can free up a lot of space by simply getting rid of them and using the Internet to reference what’s on them whenever I need to look up something. but I can’t because they’re still protected effectively forever (from my perspective) which means the only way I can reference the information on them in the future is to keep them and have them continue taking up a lot of space. I donated a relatively old encyclopedia set that I didn’t want to get rid of to a local library but it takes too much space to keep but, unfortunately due to political corruption, I have no reference to it anymore on the Internet (and who knows if the library will keep it or junk it). These bought laws do negatively affect me and I’m sick and tired of it.

Darren says:

Ehh

If you make a public domain dedication then you are legally bound not to invoke any kinds of “exclusionary rights provided under copyright”, because by doing so you are legally WAIVING those rights. Once you’ve made such an announcement, there IS no copyright and to attempt to claim one puts you as the one without a legal leg to stand on.

The thing about public domain is, somebody else can then pick it up, covertly put it into a different product, and then copyright that preparation, making tons of money with your idea. You cannot then decide you should get royalties, your idea is public domain.

Anonymous Coward says:

Let's see, a loophole so even termination rights don't work on prematurely PD'd works, or are unwise...

While alive, explicitly forbid others from “protecting” your work without your express permission. As you’ll never grant defenders permission to begin with, it’s a moot point. Also, since there’s no punishment for not defending copyrights, no-one can do a single thing about it.

To subvert greedy heirs, explicitly stipulate in one’s will that any old IP the writer completely owns is to stay a public license, to buy time before the heir learns about termination rights. If that fails, maybe one of the following dissuasion clauses could help, making it painful for the heirs to use the unwaivable termination rights…

1. SURPRESSION: Stipulate in one’s will that no-one is allowed to “protect” your works/alter the public domain license, while giving the inheritors other really valuable things. Then, stipulate that if the family/heir even attempts to use termination rights/call off old public licenses, they lose everything else the will granted. This would give them incentive not to do it.

2. YOUR POCKET OR MY WAY: Alternatively, write that if the heir/will incumbent terminates a public license or “protects” the IP, they are legally bound to donate an insane amount of money every year to a charity, and it has to be all in one donation- not smaller installments. For further dissuasion, make the monetary amount something even the IP and the heir together couldn’t gain, one or two digits higher than the total achieved. If the heirs don’t have the money, or they donate in smaller installments, they must permanently change the IP back to a public license and never defend it nor allow others to defend it. They want the IP again, they have to donate the insane monetary amount again.

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