Re: Re: Software Licensing Agreement - Public Domain dedication

It seems to me that there is still a difficulty which is "How does one ensure that a dedication to the public domain " is effective in some enforcable sense or should I say ensure that the rights are not thereafter enforcable against others.
Someone says by some form of published statement that this work is "dedicated to the public". WOWEE. Someone sees the work and says to the originator that they would like to have it exclusively and will pay serious money for it if this can be the case. Our first party then simply publishes a message saying that he has changed his mind and it is no longer dedicated to the public. What is to stop this from happening perhaps then leaving any person who took advantage of the statement that the work was dedicated to the public. Is there an action for damages against the first party if they can no longer use the work?. Or perhaps the courts may see the fact of a notice of "dedication to the public as a license without cost to all". However there would be arguably a problem that such a license being necessarily a contract is missing some ingredients. Is the dedication effectively revocable at the will of the first party? The next issue is whether the work contains also the work of others for which the first party cannot give any assurances so that a dedication to the public is only in relation to that part of the work that the first party is entitled to.
If I use the work and get sued by someone whose work is being incorporated in the first work is there an action against the first party for misleading the "public" that the rights are in fact available for use by anyone.
Seems there are some interesting complexities. It may well be that there needs to be some legislative process that would allow for "a dedication to the public" to be effective. I am not sure as to whether various countries have some solution. Howard Schulze
On 10/02/2006, at 10:00 AM, Andrew SkinnerLopata wrote:

> tja[_at_]mds.rmit.edu.au wrote:
>
>>> 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.
>> Doesn't the originality test solve this? It does in jurisdictions
>> in the
>> British tradition.
>> tja
>>
> Yes, a work must be original to be protected, but if you mix parts
> of a public domain work with original content to create a new work
> where do you draw the line? If there are multiple works based on
> an underlying PD work, can the earlier users eat up some of the
> territory and exclude others? Disney made millions by producing
> films based on public domain stories but then sues others for using
> the same stories because it's too close to their work. See e.g.
> Walt Disney Productions v. Filmation Associates, 628 F.Supp. 871
> (1986) (Filmation liable for story boards of Pinocchio that looked
> too much like Disney's work). I'm not sure how this would play out
> in a computer software scenario, but I'd still characterize
> dedication to the public domain as a risk (if the dedicator wants
> to continue to modify and develop the software).
>
>
> -Andy
>
>
>
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Howard Schulze
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