Re: Public Domain and Packaging
Sean Kellogg wrote: There is no such thing as software that isn't copyrighted. He means software written after 1988, of course. All original expression that is fixed in a tangible form is immediately copyrighted (at least, that's the U.S. rule). Since the passage of the Berne Convention Implementation Act in 1988. (Which was a Big Mistake.) Mr. Crowther is better off accepting he has a copyright and simply attaching a COPYING file that says Well, what it should say is this: I hereby grant everyone an irrevocable license to treat this work exactly as if it were in the public domain. That's the closest you can get to the public domain with certainty, in the US at the moment. The problem is that it's not actually clear that it's possible to voluntarily place a work in the public domain in the US since the BCIA passed. (Before that, it was easy.) The irrevocable is important in case your heirs decide to contest your public domain dedication and steal the work back from the public (unlikely, but very nasty). :-( -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Public Domain and Packaging
In message [EMAIL PROTECTED], Brian M. Carlson [EMAIL PROTECTED] writes 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. I gather that's false too :-) The rule, afaict (and I'm not an American), is that copyright *cannot* *be* *enforced*, which is not the same thing at all ... Cheers, Wol -- Anthony W. Youngman - wol at thewolery dot demon dot co dot uk HEX wondered how much he should tell the Wizards. He felt it would not be a good idea to burden them with too much input. Hex always thought of his reports as Lies-to-People. The Science of Discworld : (c) Terry Pratchett 1999 -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Public Domain and Packaging
On Fri, Jul 22, 2005 at 10:05:09PM +0100, Anthony W. Youngman wrote: The rule, afaict (and I'm not an American), is that copyright *cannot* *be* *enforced*, which is not the same thing at all ... http://www.copyright.gov/circs/circ1.html#piu --Adam -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Public Domain and Packaging
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. 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. -Sean -- 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
Re: Public Domain and Packaging
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.
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.
--
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5:75Q96AT9V1YF%L=G-P;6IX9BP)
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Description: This is a digitally signed message part
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
Re: Public Domain and Packaging
On Mon, 18 Jul 2005, 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 at least one copus of work that is not copyrighted in the US; that's work created by the government. There are other classes of uncopyrightable works as well, and ways to abandon the rights granted by copyright. Don Armstrong -- This space for rent. http://www.donarmstrong.com http://rzlab.ucr.edu -- To UNSUBSCRIBE, email to [EMAIL PROTECTED] with a subject of unsubscribe. Trouble? Contact [EMAIL PROTECTED]
Re: Public Domain and Packaging
On 7/18/05, Sean Kellogg [EMAIL PROTECTED] 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/msg2.html of whether the US Government could copyright its works in, say, Italy. IANAL, TINLA. 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 language). 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 hassle. 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. Cheers, - Michael (IANAL, TINLA)
