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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

Fri, Jan 23rd 2015 6:10pm — Mike Masnick

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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Filed Under: copyright, copyright termination, public domain, termination rights

31 Comments

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Anonymous Coward, 23 Jan 2015 @ 7:06pm

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
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- Mike Masnick (profile), 24 Jan 2015 @ 6:18am
  
  Re:
  From 9th Circuit jury instructions:
  
  Even so, under copyright termination, the rights can be brought back. Termination is inalienable...
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Sheogorath (profile), 23 Jan 2015 @ 7:39pm

I see what you're saying; use of a CC-0 licence by a former copyright holder fulfils both of those criteria.
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Anonymous Coward, 23 Jan 2015 @ 7:53pm

Jesus Christ this is such a first world problem. 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?
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- cpt kangarooski, 24 Jan 2015 @ 5:24am
  
  Re:
  Termination rights can be exercised by family members after the death of an author, if the timing is right. So it might not be a trick, but the result of a family argument.
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- PaulT (profile), 24 Jan 2015 @ 5:59am
  
  Re:
  "this is such a first world problem"
  
  Yeah, almost as much as the first world problem of people writing what you don't like, and using your freedom of speech to complain about it!
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- Mike Masnick (profile), 24 Jan 2015 @ 6:17am
  
  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.
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  - Anonymous Coward, 24 Jan 2015 @ 12:16pm
    
    Re: Re:
    The fact is there is no end to the extent of ridiculous lawsuits in this country. The above scenario you were responding to is quite possible here.
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  - Anonymous Coward, 24 Jan 2015 @ 2:21pm
    
    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?
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    - John Fenderson (profile), 26 Jan 2015 @ 7:49am
      
      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.
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- Anonymous Coward, 24 Jan 2015 @ 10:17am
  
  Re:
  Unfortunately in America something so silly is a legitimate concern.
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- Rich, 24 Jan 2015 @ 12:29pm
  
  Re:
  I am so sick of that expression. Yeah, I have first-world problems. I live in the FIRST-WORLD. That nonsense mantra means that unless you are starving, or dying from an curable disease, etc., than your problems don't matter. Well, that is bullshit.
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  - Anonymous Coward, 24 Jan 2015 @ 4:20pm
    
    Re: Re:
    To be fair, describing minor inconveniences as "First World problems" isn't completely unsuitable.
    
    The issue is, as is demonstrated here, the term is often used to trivialize legitimate problems with far-reaching consequences.
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    - John Fenderson (profile), 26 Jan 2015 @ 7:52am
      
      Re: Re: Re:
      "describing minor inconveniences as "First World problems" isn't completely unsuitable."
      
      But it's pretty close. There are many things that are legitimately large problems in the first world that aren't anywhere else. That doesn't mean that those things are minor inconveniences.
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      - Anonymous Coward, 27 Jan 2015 @ 11:52pm
        
        Re: Re: Re: Re:
        Depends on whether your "First World problems" are like the ones lampooned by "Weird Al" Yankovic in his titular song, "First World Problems".
        
        In this case I'm agreeing that not putting things in the public domain is far from insignificant.
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- TerryC, 27 Jan 2015 @ 7:41am
  
  Re: That's exactly the problem
  It's not unheard of. Shall we look at gif and LZW patent enforcement?
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- Anonymous Coward, 28 Jan 2015 @ 6:59am
  
  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.
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Anonymous Coward, 23 Jan 2015 @ 8:13pm

Another problem is the issue of: what happens under the law when someone flagrantly violates the terms of a Creative Commons or GPL license?

Basically nothing, since unlike copyright, these intellectual-property instruments have no legal standing.
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- cpt kangarooski, 24 Jan 2015 @ 10:08am
  
  Re:
  Nonsense. The GPL and the like are valid enough that a breach would either be treated as breach of contract or as a copyright infringement, depending on the particular circumstances involved. Why do you think otherwise?
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- Goyo (profile), 24 Jan 2015 @ 10:19am
  
  Re:
  If you violate a software license you are infringing on copyright, it does not matter if it is a free license or not. The owner of the copyright can seek damages and injunctive relief. See the lawsuits against Fortinet and D-Link in Germany and Cisco in the US.
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- Richard (profile), 24 Jan 2015 @ 10:22am
  
  Re:
  Basically nothing, since unlike copyright, these intellectual-property instruments have no legal standing.
  
  Not true - since these instruments leverage copyright to achieve their effects.
  
  See https://www.gnu.org/philosophy/enforcing-gpl.html
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- John Fenderson (profile), 26 Jan 2015 @ 7:53am
  
  Re:
  "Basically nothing, since unlike copyright, these intellectual-property instruments have no legal standing."
  
  That's simply untrue, unless you're arguing that any contract between two people has no legal standing.
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Chris Brand, 23 Jan 2015 @ 9:03pm

The really sad thing
is that termination rights are a hack to work around the problem of copyright terms being way too long.

So of course the real fix is to cut copyright terms down and scrap termination rights altogether.
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jupiterkansas (profile), 23 Jan 2015 @ 10:45pm

The only real fix is that everything is automatically public domain upon creation - which is its natural state - and you must actually register it if you want copyright protection.

A system where every single bit of creation is under copyright the moment it exists is the root problem of copyright law.
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T. Cooke, 24 Jan 2015 @ 2:00am

35 years on a free software? Come on LOL
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Reality bites, 24 Jan 2015 @ 4:56am

For the people by the people.... what a joke, freedom? what a joke
Just proves beyond a fools doubt that the system is 100% broken, run by parasites for their own profit.
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Anonymous Coward, 24 Jan 2015 @ 9:22am

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-conti nues/
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Anonymous Coward, 25 Jan 2015 @ 7:23am

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.
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Darren, 25 Jan 2015 @ 9:58am

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.
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- John, 26 Jan 2015 @ 7:00am
  
  Re: Ehh
  Nope, the law is very clear that reversion rights cannot be waived. As the post explains in some detail.
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Anonymous Coward, 26 Aug 2015 @ 8:43pm

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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