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Software and the Public Domain

by Chad Whitacre

Can software be put in the public domain? Probably.
Should it? Probably not.

Lately I've been trying to form an opinion on software copyright and licensing, and one of the options I'm looking at is dedicating software to the public domain. While other licensing options (GPL, BSD, etc.) are fairly well staked out, I found some confusion in the community about the public domain. Folks debate whether it is a good idea to dedicate software to the public domain, of course—copyright and licensing are perennial hot buttons. But some seem to question whether such dedications are even possible at all.

This confusion stems in particular from various comments by Lawrence Lessig and Lawrence Rosen, two of cyberspace's brightest legal luminaries. Mr. Rosen raises doubts about the advisability and possibility of dedicating software to the public domain. On the other hand, the Creative Commons allows for dedications to the public domain (although their primary thrust is "some rights reserved" licenses), and Mr. Lessig has hinted that software in particular can indeed be dedicated to the public domain [note: find "public domain"].

After doing some homework, I contacted them both and asked if they would clarify their understanding of software and the public domain for us. Both kindly responded, and this document is my understanding of the issue based on their responses, coupled with some other resources. In particular, I would also like to acknowledge the sqlite-users mailing list, and especially Ulrick Petersen, for their contributions to the discussion. In the end, though, the opinions in this article are mine, and I am not a lawyer.

What is the Public Domain?

Dedicating something to the public domain means voluntarily giving up your rights to it. This isn't actually a license, because a license derives from ownership, from copyright. Licensing your intellectual property is like renting out a car that you own, or loaning your car to a friend. The car is still yours. Dedicating a work to the public domain is more like abandoning your perfectly good car on the side of the road, for any and all to use.

While this might seem a little crazy when talking about cars (unless you believe in Maude), it actually makes some sense when talking about ideas. That's because intellectual property escapes some of the limitations of physical property. In particular, an idea can be in two places at once, or as Thomas Jefferson put it:

He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

For more background on the public domain, I recommend the Creative Commons' "Legal Concepts" page.

Can Software Be Put in the Public Domain?

Short answer: probably. When an author publishes a work, s/he is automatically granted copyright in that intellectual property. Copyright is the default setting. When the copyright expires (generally 70 years after the author's death), the work reverts to the public domain. But in order for a work to become part of the public domain before then, it must be explicitly placed there.

The problem is that the mechanism for explicitly dedicating a work to the public domain is not clearly spelled out in the law. The most cautious interpretation of the situation, therefore, is that explicit dedications to the public domain are not in fact possible. A more moderate reading would say that the waters simply have yet to be charted. After all, copyright has only been the default since 1989. Before then works were assumed to be in the public domain unless explicitly copyrighted.

Another issue with dedications to the public domain is that some countries, Germany for instance, do not recognize forfeitures of copyright at all. The author of a work has an inherent copyright that cannot be disavowed. So at least for software projects with German contributors, then, the answer would appear to be closer to, "No."

Should Software Be Put in the Public Domain?

Short answer: probably not. The primary consideration seems to be that software has the potential to cause harm, and therefore exposes its author to more liability than, say, the author of a book. Apparently, disavowing ownership does not get you off the hook in the event that your software does cause harm, although I don't know whether this has been tested in court or not.

If you retain your copyright, however, and distribute your software under a license, then that gives you the opportunity to “disclaim any warranty of merchantability or fitness for a particular purpose,” etc. This appears to be the crucial distinction between public domain software and software that is licensed under a so-called “liberal” license such as the BSD or MIT licenses, which otherwise share the characteristic that anyone can do whatever they want with the software. And for this reason, both Mr. Rosen and Mr. Lessig recommend that if this is your goal—to let anyone do whatever they want with your software—you should use a liberal license instead of dedicating it to the public domain.

Conclusion

The conclusion I draw on both of these questions is that the copyright and licensing options for your project will derive from your risk tolerance with regard to the law (in balance with other factors, such as the intended audience for your software). If you are confident in the possibility of explicit dedications to the public domain, and are willing to accept any possible liability that might exist by not explicitly disclaiming liability via a license, then the public domain will be an option for you. If you prefer to chart a safer course, then you should consider a liberal license instead of a dedication to the public domain.

If you do want to dedicate your software to the public domain, you can use the process at the Creative Commons to do so. For the record, the Creative Commons licenses are intended for non-software works, and they clearly say so in their FAQ. However, the public domain is not a license, it is not peculiar to the Creative Commons, and the Creative Commons mechanism is the clearest way I've found for performing a dedication.

In the end, the decision is yours to make—in consultation with your attorney, of course.


Chad Whitacre wanders around cyberspace looking for a way out. This article was last modified in August, 2008; comments should go to chad@zetaweb.com. This article is dedicated to the public domain.

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