There is No Legal Mechanism to Put Something in the Public Domain

Why the Public Domain Isn’t a License

The notion of tossing software into the air to be blown
about haphazardly by the wind is not entirely frivolous.  The image is apt to
describe the public domain. 

Software engineers use the term “public domain” as if it
means a place where anyone can do anything they want with software.  Public
domain software has no owner.  Even the government doesn’t own it.  It is simply
“free,” as in the terms “free beer” and “free speech.” 

There is such a thing as the public domain.  In it
one can find Bach’s sonatas, Shakespeare’s plays, the drawings of DaVinci, and
the design of the Eiffel tower.  These things literally are available for anyone
and everyone to use without permission. 

Intellectual property enters the public domain only when it
grows old.  Everything else, including certainly any computer software of recent
vintage, is owned by somebody somewhere.  It is not “free” for the taking.

The legal monopolies for software under copyright laws last
a very long time.  Under current law, copyright extends for the life of the
author plus 70 years; in the case of pseudonymous or anonymous works, or works
made for hire, copyright extends for 95 years from the year of its first
publication or 120 years from the year of its creation, whichever expires
first.  The software industry is new, and so it is rare today to find any
important software for which the copyright has expired.  (Congress recently
extended the length of copyright term in a provision that has been described
derisively as a special boon to the Disney corporation to protect its copyrights
in Mickey Mouse comics.  That extension has been challenged in the U.S. Supreme
Court as inconsistent with the Constitutional objective to grant copyright
monopolies in order to encourage the progress of science and the arts.) 

Just as there is nothing in the law that permits a person
to dump personal property in the public highway, there is nothing that permits
the dumping of intellectual property into the public domain — except as happens
in due course when any applicable copyrights expire.  Until those copyrights
expire, there is no mechanism in the law by which an owner of software can
simply elect to place it in the public domain. 

There is one exception to this in section 105 the Copyright
Act.  Works written by the U.S. government cannot obtain copyright protection
and so are automatically in the public domain.  Obvious examples of this are
court decisions and Congressional statutes.  Be careful, though.  This exception
applies only to works created by employees of the U.S. government, not typically
by contractors to the government.  University researchers and government
laboratories doing work for the government ordinarily own copyrights in their
works and can license them to third parties.

For these reasons, the “public domain” solution for free
and open source software is largely irrelevant.

Even though there is no useful “public domain” repository
of computer software, it is still possible for the creator of software to give
it away.  One doesn’t have to be a lawyer to craft appropriate language:

“This is my
software.  I hereby give it away to anyone who wants it for any purpose
whatsoever.”

Unfortunately, lawyers will explain, such gifts are
illusory.  Under basic contract law, a gift cannot be enforced.  The donor can
retract his gift at any time and for any reason (with some mostly unimportant
exceptions).  This is scant security for someone intending to make long-term use
of a piece of software.

This “Give-It-Away” license provides no protection for
anyone if the donated software causes harm.  Obviously one cannot intentionally
give away something he knows to be dangerous; that is criminal behavior!  But
neither, in this litigious society, can one escape a lawsuit just because his
gift was only accidentally harmful.  As any lawyer will warn his client, the
risk of such a license is far greater than the warm feelings that enrich the
soul of the giver.  One important value of a license is the opportunity to
disclaim warranties and distribute the software “AS IS.”  If you give software
away, you may retain a risky warranty obligation.

Notice also that the donor under this “Give-It-Away”
license has not placed any restrictions on the gift.  For example, a recipient
can make secret changes to the donated software and re-release the changed
version to the world for a fee under a proprietary license.  To many people in
the free and open source movement, this violates another fundamental objective:
the recipients of free or open source software should abide by the same
“published source” rules as the original donor.  If recipients distribute the
donated software, with or without changes, they should also publish their source
code.  The “Give-It-Away” license doesn’t force reciprocal source code
publication.  (Neither, for that matter, do the BSD, MIT, Apache and similar
software licenses.)  If you want to impose conditions on copying or distribution
of software – even the minimal set of conditions allowed under the open source
definition – you must use a license rather than rely on a gift to the “public
domain.”

Caveat emptor.  Use the “Give-It-Away” license at
your own risk.  And don’t accept gifts of software presuming they are in the
public domain.


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