On Sat, 17 May 2014 10:29:00 +0100, Robert Kern wrote:

> One can state many things, but that doesn't mean they have legal effect.
> The US Code has provisions for how works become copyrighted
> automatically, how they leave copyright automatically at the end of
> specific time periods, how some works automatically enter the public
> domain on their creation (i.e. works of the US federal government), but
> has nothing at all for how a private creator can voluntarily place their
> work into the public domain when it would otherwise not be. It used to,
> but does not any more.

The case for abandonment was stated as "well settled" in 1998 (Micro-Star 
v. Formgen Inc). Unless there has been a major legal change in the years 
since then, I don't think it is true that authors cannot abandon 

> For a private individual to say about a work they just created that
> "this work is in the Public Domain" is, under US law, merely an
> erroneous statement of fact, not a speech act that effects a change in
> the legal status of the work. For another example of this distinction,
> saying "I am married" when I have not applied for, received, and
> solemnified a valid marriage license is just an erroneous statement of
> fact and does not make me legally married.

There may be something to what you say, although I think we're now 
arguing fine semantic details. See:


To play Devil's Advocate in favour of your assertion, it may be that 
abandoning copyright does not literally put the work in the public 
domain, but merely makes it "quack like the public domain". That is to 
say, the author still, in some abstract but legally meaningless sense, 
has copyright in the work *but* has given unlimited usage rights. (I 
don't actually think that is the case, at least not in the US.)

It's this tiny bit of residual uncertainty that leads some authorities to 
say that it is "hard" to release a work into the public domain, 
particularly in a world-wide context, and that merely stating "this is in 
the public domain" is not sufficient to remove all legal doubt over the 
status, and that a more overt and explicit release *may* be required. 
Hence the CC0 licence which you refer to. The human readable summary says 
in part:

     The person who associated a work with this deed has dedicated
     the work to the public domain by waiving all of his or her
     rights to the work worldwide under copyright law, including
     all related and neighboring rights, to the extent allowed by

     You can copy, modify, distribute and perform the work, even
     for commercial purposes, all without asking permission.


while the actual legal licence comes in at almost 800 words. This is 
basically the same as "I release this to the public domain" only longer.

(The CC0 licence is longer than you might expect, because it is assumed 
that it may have to apply in countries where you *really cannot* 
relinquish copyright. But we're specifically talking about the US, where 
the 9th Circuit says you can.)

> Relinquishing your rights can have some effect, but not all rights can
> be relinquished, 

Outside of the US, so-called "moral rights" or "reputation rights" cannot 
generally be relinquished, except perhaps in work-for-hire and perhaps 
not even then. (E.g. if you're a ghost writer.) The situation in the US 
is a bit murky -- there are no official moral rights per se, and 
copyright only controls usage rights such as copying, distribution and so 
forth. But this doesn't mean that you can (for example) claim authorship 
of a public domain work unless you actually wrote it.

In any case, we're discussing copyright, not other rights.

> and this is not the same as putting your work into the
> public domain. 

One might "not be the same" while still being "effectively the same". For 
example, the U.S. Copyright Office states that "one may not grant their 
work into the public domain. However, a copyright owner may release all 
of their rights to their work by stating the work may be freely 
reproduced, distributed, etc." as if it were in in the public domain.

But note that the Copyright Office does not make the final decision 
whether you can relinquish copyright or not. That's up to the courts.

> Among other things, your heirs can sometimes reclaim
> those rights in some circumstances if you are not careful (and if they
> are valuable enough to bother reclaiming).

That's a good point. A simplistic "I release this to the public domain" 
statement *may* (I emphasise the uncertainty) leave some doubt that it is 
*sufficiently overt* to prevent your heirs from disagreeing and coming 
after your users for infringement. Then the courts have to get involved, 
and it's all ugliness and only the lawyers win.

Hence the advice to be as explicit and overt as possible.

> If you wish to do something like this, I highly recommend (though IANAL
> and TINLA) using the CC0 Waiver from Creative Commons. It has thorough
> legalese for relinquishing all the rights that one can relinquish for
> the maximum terms that one can do so in as many jurisdictions as
> possible and acts as a license to use/distribute/etc. without
> restriction even if some rights cannot be relinquished. 

I agree with all of that not-legal-advice. And I too am not a lawyer.

> Even if US law
> were to change to provide for dedicating works to the public domain, 

This I disagree with -- the 9th Circuit Court says the US already 
provides for that.

What we don't disagree with is that it *may* be trickier than a naive non-
lawyer (including me!) thinks to satisfy the Court's "overt act" test. 
Given that uncertainty, overkill may be safer than underkill. The CC0 
licence, at nearly 800 words, is probably overkill for the US, but it's 
more certain.

> I would probably still use the CC0 anyways to account for the high
> variability in how different jurisdictions around the world treat their
> own public domains.

Yes to all that.

>    http://creativecommons.org/about/cc0
>    http://wiki.creativecommons.org/CC0_FAQ
> Note how they distinguish the CC0 Waiver from their Public Domain Mark:
> the Public Domain Mark is just a label for things that are known to be
> free of copyright worldwide but does not make a work so. The CC0 *does*
> have an operative effect that is substantially similar to the work being
> in the public domain.

Steven D'Aprano

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