Even assuming a dedication to the public domain is irrevocable, it does
not resolve the other risks and flaws that a believe concern Mr. Rosen
(please correct me if I'm wrong).
One such risk is that once dedicated to the public domain a work (the original work "OW") is free to be chopped up, modified and used by whomever, and then locked up as a new copyrighted work with all rights reserved. Imagine the owner of the new proprietary work (PW) suing the dedicator for using a subsequently developed version of OW. As Mr. Noble pointed out there would likely be a successful estoppel defense in an infringment action, but being in such a defensive position is definitively a risk. Even if dedicator is not sued, others who use certain parts of OW may end up getting sued by the owner of PW. An open source license could help avoid these problems.
Mr. Jamar's analogy to tangible property and money is interesting: "I cannot reclaim a book that I have given to someone. I cannot reclaim money I give to a charity." A physical book is tangible rivalrous property, which is governed by different laws which are based on different underlying values. IP is not fungible the way money is. IP is valuable *because* it is original, and not the same as every other computer program, book, etc. Do these differences matter? Does one give up (or retain) intangible rights with a gift of tangible property, such as a gift of money to charity? You cannot get back the money, but can you claim to have owned it at one time (attribution for the gift?). Is this an enforcable right? Does the donee have all the rights associated with that money?
As others here have argued, the scope of rights in a dedication to the public domain is not a simple question to answer. Especially when the rights have a constitutional basis, and there is no statutory method for making such a dedication.
-Andy
Steven Jamar wrote:
> You give up your rights and can take them back? On what theory? If
> you have no rights, you have no rights. End of discussion.
>
> If you give a license, then you can revoke the license (subject to
> notice and equity limits and such, I presume), but if you relinquish
> your rights under what possible theory can you get them back?
>
> Dedication to the public domain, relinquishing rights is not the same
> as giving permission to use. The former is relinquishing rights, the
> latter is a license.
>
> I cannot reclaim a book that I have given to someone. I cannot
> reclaim money I give to a charity. Once I give up title, I give up title.
>
> Again, under what possible theory could one reclaim a copyright in a
> work in which one has renounced all copyright?
>
> Is there any instance of it being done? Of a court letting someone
> undo the dedication?
>
> I can imagine a situation of coercion or duress or fraud vitiating a
> dedication to the public. But that can't be the concern, is it?
>
> Mere "dedicator's remorse" can't really be the worrisome flaw, surely!
>
> Knowing whether something is merely not having rights asserted in it
> vs. it having been dedicated to the public domain is vexatious problem
> -- as are orphan works and such. But that cannot be the risk or flaw
> referred to, is it?
>
> If you do not want the copyright, just say so. The government is not
> forcing you to keep it or to assert it. Many things are freely
> available either as having been dedicated to the public domain or as
> having a broad license to use and disseminate. In both cases one
> needs to say something. One may not like that policy choice, as
> opposed to the necessity of affirmatively doing something to claim the
> right, but it is merely a policy choice, not a legal flaw or risk
> attendant to actually doing it.
>
> Steve
>
>
>
> On Feb 6, 2006, at 6:15 PM, McKie, John wrote:
>
>> IMHO, I think that the crux of the question is whether, once you have
>> made
>> such a public disclaimer, whether or not you are legally prevented from
>> "taking it back". By analogy you can generally withdraw a mere
>> permission
>> to use a work. Likewise, what legally prevents you from withdrawing the
>> permission inherent in announcing that the disclaimer is rescinded?
>> Presumably principles of equity apply where there is acquiescence, but my
>> guess is that this does not give the clear predictability that
>> proponents of
>> public domain dedication in copyright disclaimers seek.
>>
>>
>> John McKie
>> Trademark Partner
>> Ladas & Parry LLP
>> johnm[_at_]ladas.net <mailto:johnm[_at_]ladas.net>
>> P: 312.427.1300
>> F: 312.427-6663
>> www.ladasparry.com <http://www.ladasparry.com>
>
>
> --
>
> Prof. Steven D. Jamar vox: 202-806-8017
>
> Howard University School of Law fax: 202-806-8428
>
> 2900 Van Ness Street NW
> mailto:mailto:stevenjamar[_at_]gmail.com
>
> Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar
>
>
> Nothing worth doing is completed in our lifetime,
>
> Therefore, we are saved by hope.
>
> Nothing true or beautiful or good makes complete sense in any
> immediate context of history;
>
> Therefore, we are saved by faith.
>
> Nothing we do, however virtuous, can be accomplished alone.
>
> Therefore, we are saved by love.
>
> No virtuous act is quite a virtuous from the standpoint of our friend
> or foe as from our own;
>
> Therefore, we are saved by the final form of love which is forgiveness.
>
>
> Reinhold Neibuhr
>
>
>
Received on Wed Feb 08 2006 - 00:20:00 GMT
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