Software and the Public Domain
Responses from Messrs. Rosen and Lessig
Thanks to both for their kind responses, and for all of their work on behalf of the Internet community. Please see the main article for full context.
From: Chad Whitacre
Date: 5/26/2005 8:13 AM
To: Lawrence Rosen, Lawrence Lessig
Subject: request for clarification regarding dedications to the public domain
Dear Mr. Rosen and Mr. Lessig:
I am trying to form an opinion on software copyright and licensing issues, and I am confused by an apparent difference of opinion between yourselves on whether it is possible to dedicate software to the public domain. This confusion is shared by others.[1]
Mr. Rosen, I've found a statement on your website saying that "there is no mechanism in the law by which an owner of software can simply elect to place it in the public domain."[2]
In contrast, Creative Commons does include dedications to the public domain as part of it's program,[3] and we've found this instance of Mr. Lessig explicitly referring to such dedications:
It is therefore perfectly permissible for the owner of a copyright to do nothing with it. And it would be perfectly permissible for the owner of a copyright to give it away — to dedicate it to the public domain. (And if you'd like to do that, Creative Commons will help). But again, GPL'd software is not dedicated to the public domain. [4]
Would either of you care to comment on this apparent difference of opinion?
Thank you.
yours,
Chad Whitacre
http://www.zetadev.com/
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[1] Examples from the mailing lists:
http://article.gmane.org/gmane.comp.db.sqlite.general/12323
http://article.gmane.org/gmane.text.docutils.devel/2804
[2] http://www.rosenlaw.com/lj16.htm
[3] http://creativecommons.org/licenses/publicdomain/
[4] http://linux.sys-con.com/read/38116.htm?CFID=176814
From: Lawrence Rosen
Date: 5/26/2005 3:58 PM
To: Chad Whitacre
Cc: Lawrence Lessig
Subject: RE: request for clarification regarding dedications to the public domain
Chad,
Copyright law says that copyright "subsists" in original works, and it doesn't take any action on the part of an author to claim or assert copyright. In this regime, a work becomes a part of the "public domain" only when its copyright expires by the passage of time or, in a few other limited cases, such as when it is written by a U.S. government employee in the course and scope of his or her work.
What, then, is an author to do who expressly wishes to renounce his or her copyrights? There is no statutorily authorized procedure for this, but many attorneys (and Creative Commons) suggest ways.
A "dedication to the public" is one alternative, as is a "waiver of rights to assert," both of which let everyone know that there is no risk of their being accused of infringement for doing what the author expressly appears to be authorizing, namely practicing any of the author's exclusive rights to make copies or derivative works. Most of us treat such statements of copyright disclaimer as the legal equivalent of a broad license with no terms and conditions and, from the donor's perspective, it works the same way.
For creative content other than software, such a dedication carries few risks. The recipient of the work understands that he will not be challenged if he makes copies or derivative works, and the donor recognizes that he is not likely to be sued by anyone as a result of making such a generous donation.
Software, however, carries other risks. Because software can cause unfortunate and perhaps unforeseen harm, the donor may risk a lawsuit even by giving his property away. For software, then, it is better not to "dedicate the work to the public domain" and instead to license it with an express statement of warranty disclaimer. That is the theory behind the simple BSD license, although it does a few other things relating to trademarks and attribution.
So I don't disagree with Lessig's recommendation for non-software, but I strongly encourage a more thorough license for software that could do things that, in theory at least, cause harm.
There are many other advantages of a detailed license containing clear terms and conditions rather than a simple dedication to the public or a waiver of rights. I don't bother restating those other advantages here, but they relate primarily to the rules of contract formation, interpretation and enforcement. Such terms are particularly relevant for software.
I also want to agree with another point often made by Lessig, namely that the changes to copyright law in the U.S. that made copyright "subsist" and that removed the formalities of registration and marking of works, had dramatic unintended consequences. Not only was the public domain made MUCH smaller, but it became harder for people to let their works be freely used by everyone without using a license. Such a burden!
/Larry Rosen
Lawrence Rosen
Rosenlaw & Einschlag, technology law offices (www.rosenlaw.com)
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242 ? fax: 707-485-1243
Author of "Open Source Licensing: Software Freedom and
Intellectual Property Law" (Prentice Hall 2004)
[Available also at www.rosenlaw.com/oslbook.htm]
From: Lawrence Lessig
Date: 5/27/2005 10:02 AM
To: Lawrence Rosen
Cc: Chad Whitacre
Subject: RE: request for clarification regarding dedications to the public domain
I agree with Lawrence. Our licenses are expressly not to be used for software. This is one of the reasons. And while I'm optimistic that sufficiently affirmative steps would succeed in moving a work into the public domain, it has not been tested. I therefore believe it is safest for people to use a simple Attribution license.
