There are a large number of works that have been released under the formula ‘Public domain for non-commercial use’. Everyone seems to think they know what this means, although, on the face of it, it seems nonsensical.
‘Public domain’, under US copyright law, means that nobody owns the copyright to a specific work and so anyone can use it for any purpose whatsoever. It does not appear to be a concept that admits to restriction or modification: It is no more possible for a work to be a little bit public domain than it is possible for a woman to be a little bit pregnant, as I understand the concepts.
However, I have seen so many works released under that exact formula that it seems bizarre any judge would want to deliberately toss the can of worms into the hornet’s nest to wake the sleeping dog by declaring it to be legally null. It seems that the author, when confronted with someone using his works in a manner he deems ‘commercial’, could appeal to the court with the ‘You Know What I Meant’ doctrine: “The formula’s meaning is painfully obvious to anyone not trying to weasel their way around it, so we demand that the judge think like a human being and reach the correct conclusion.”
Except that I don’t know if that would work.
The second line of defense could be founded on the idea that ownership is absolute, and the owner can allow and disallow whatever conduct he pleases as regards his property. (Ignoring for the nonce conduct that violates statute or contract or legal judgement or suchlike.): “The idea that a mere legal technicality could be allowed to denigrate someone’s rights to disallow the use of his property is abhorrent to the very foundations of our culture and must be laughed out of court.”
Except that I don’t know if that would work.
So, what am I missing here? Have I stumbled onto something as odd as I think it is?
Well, works are protected under copyright, so strictly speaking the entire phrase is redundant. You control your material. But… the phrase looks like it’s giving license to use your copyrighted material, and the overwhelming sense is that it’s for non-commercial use, the “public domain” notwithstanding. Even if one were to misinterpret “public domain” I think that legally you’re okay (here’s where we need a copyright lawyer). I think that you cannot release anything into the public domain. Public domain is only acheivable by expiration of your copyright. Since copyrights are automatic, you can’t not say that something isn’t copyrighted. Because it’s copyrighted, it’s by definition non-public domain. Of course lots of people put “public domain” on their works, but until the copyright expires, it’s not true public domain. What you imply by stating “public domain” is “I won’t enforce any of my rights under copyright so do what you want to with this work.”
Okay… so “public domain for non-commercial use.” As the copyrightholder you can prohibit any uses as the lawe lets you. The “public domain” part isn’t correct, you really mean “I don’t enforce my rights.” So you have a translation to this: “I don’t enforce my rights for non-commercial use.” Yeah, you’d need a judge to make sure it’s really iron clad, but my non-lawyer take on this is that such wording, while ambiguous and unwise, would probably hold up since the intent is clear.
Technically, it is unenforceable. A creator can certainly put his work in public domain – you just have to state it’s in public domain (the intent of the copyright law is to put the creator in control of his work, and banning this declaration would be against the intent). And once it’s in the public domain, anyone can use it – commercial or not.
You can create the same effect by a stipulation such as: “This work may be used freely by individuals or any non-profit organization. It may not be used by a commercial enterprise without permission.” Now you can sue any commercial enterprise that uses it.
But saying “public domain except for commercial use” is meaningless, and if a commercial company wished to use it, you probably couldn’t stop them. (You’d argue that you meant a stipulation as in the paragraph above, and the defendants would argue the work is in PD. The judge would be more inclined to stick to the letter of the declaration, and say that the work was PD).
I disagree about what most judges would do, but aside from that I agree with Chuck. The phrase is meaningles, IMO (I am not a Copyright lawyer), but its intent is obvious, and courts are not in the business of punishing legally unsophisticated players by holding them to a hypoertechnical reading that a non-lawyer could not be assumed to have understood. The history of the law during the 20th century was the move away from such an unjust “magic words” formalism.
I hope people are not confusing things like the GPL in this. There are lots of licenses, particularly in the world of software (but becoming more common for creative works) that use a “share and share alike” clause. This means, usually, that you are free to take and modify the work as you see fit, and to use it for more or less any means, but that your version must also be made available. While this doesn’t prohibit commercial use, it certainly makes it more difficult in many ways.
The difference though, is that things like the GPL are certainly not putting the work into public domain; in fact they rely on copyright to enforce the provisions of the license. As such, all that I’ve seen specifically don’t use this phrase at all (Walloon’s link to the Creative Commons license being an exception: that license is explicitly putting the work in the public domain for all purposes).
However, this difference leads me to think that the OP is talking about something else that explicitly uses the “public domain phrase”, so I have to echo the request for examples.
Actually, I just did a search for the phrase, and I see it all over the net. It seems like it’s used by a lot of people who really want a proper GPL or Creative Commons license but don’t know the difference…
But we’re all making the same mistake. A Creative Commons license does not put something into the public domain. It’s a license that permits certain uses during the term of the copyright. Once the copyright expires, the CC license is no longer valid, as the work has entered the public domain and anyone can do anything they want to with it.
I contend that there is no public domain until the copyright expires; the only thing that exists is license to use a work. Maybe you can license something to have all of the effects of public domain, but that’s only because you as the copyright holder have made that a permissive use by license, i.e., by stating it. The item is still copyrighted by you automatically.
So as a fact of law and using legal definition of “public domain,” can you disclaim a copyright prior to its natural expiration? I don’t mean provide license that for all intents and purposes makes something effectively public domain, but really and truly public domain. I don’t think it’s enough to utter “this is public domain.”
As for GPL et al, those are definitely not public domain licenses in any sense of the word. They are just that – licenses. The CC license also seems somewhat deceptive with reference to “public domain” in that it is itself just a license.
It’s doubtful it’d go to court, since the creator has renounced his right to claim copyright, but, yes, an author can declare a work to be public domain. What in the law would stop him?
Technically, I suppose you could declare as a stipulation that “This work may be used for any person for any purpose without requesting permission.” That’s certainly legal, so to use “This work is public domain” as shorthand for it is legit.
But nothing in the copyright law disallows you from declaring a work PD (as long as you’re the copyright holder), and to do so would go entirely against the intent of the law, which is to allow copyright holders to control their work as they see fit.
This page (htp://www.pdinfo.com/copyrt.htm) indicates:
As an example, Van Dyke Parks wrote a song “Van Dyck Parks” that he put into the public domain.
Yes, of course. Intellectual property is property, and you can do with it all the things you can do with property, including give it away. By declaring something in the public domain, you have declaimed ownership in favor of the public. What you cannot do, of course, is make something public domain and then try to take it out of PD, anymore that the law allows you to give someone a birthday present and then take it back six years later.
Your confusion appears to arise from reading the hypo backwards. The people in question say they’re putting work in the public domain, but they aren’t – they’re granting a free, non-exclusive limited license. But just because they’re not putting something in the PD doesn’t mean they can’t, it just means they don’t choose to.
The phrase people should be using is “permission granted for non-commerical publication”. This allows people to publish the work without having to ask for express permission. But it also shows that the author is still claiming ownership of the work. (And everyone should be advised I am not a lawyer or copyright expert.)
I know more about the GPL, the Creative Commons family of licenses, and other copyleft licenses than the average Doper, I’m pretty sure, given how long I’ve been interested in (and researching) the FLOSS (Free/Liberated/Open-Source Software) movement. I know what the formula is trying to achieve (something a bit more restrictive than the two-clause BSD license without any attribution requirement), I simply want to know if it is successful in meeting its goals.
I see this formula in old DOS software, typically made and released before copyleft was on the average non-Unix-developer’s radar. Since the declaration is typically in a document file which is contained in a compressed archive of some form (zip, usually), googling isn’t good at showing the full extent of the formula’s popularity. Google does show it in live use, however, which is enough for our purposes.
I suppose this is why the GPL and the BSD licenses and the CC licenses are needed: Getting licensing right is hard.
I’ve been looking through some of the DOS software I have on my disk (a great deal of old DOS software runs very well under dosemu on Linux) and I found a howler of a copyright statement in a documentation file included in anumr4.zip:
The first sentence is probably sufficient to demonstrate the ignorance involved, but the whole paragraph really gets the tone going. The documentation dates to May 4, 1991.
(The author was in France at the time he wrote that, if it makes a huge difference.)
Agreed, but you appear to be saying above that a creator cannot put something in the public domain of his own volition before the statutory term of C would expire. And that’s incorrect. You can put something in the public domain, but the people writing these statements, regardless of what they think they’re doing, are not actually attempting to put the work in the PD because if they did, they would have right to restrict its use in any manner.