making public domain dedication safer

[Alex Rousskov]

On Wed, 18 Feb 2004, Mahesh T. Pai wrote:

> Alex Rousskov said on Tue, Feb 17, 2004 at 02:26:11PM -0700,:
>
> <snip>
>
>  > 	The Authors place this Software is in Public Domain.
>  > 	<Creative Commons public domain dedication follows>
>  >
>  > 	If the above Public Domain dedication is deemed invalid
>  > 	under any theory of law, current or future, this Software
>  > 	can be dealt with under any OSI-approved license, including,
>  > 	without limitation, BSD and MIT licenses.
>  >
>  > The above is unpolished because I am not sure it makes sense from a
>  > legal point of view. After all, the above combination contains
>  > contradictory assumptions (public domain versus copyrighted/licensed
>  > code). Specifically,
>
> If, by contradictory, you mean the document saying that it places
> work in public domain, and then, it goes on to talk of licenses,
> then, no. It is not contradictory.

Good.

> The choice is given to you, as a recipient of a work, and you can
> exercise the that choice if, and *only* if the `dedication' is not
> valid for some reason.

Yes, that is the intent.

> I wracked my meagre brains to find some reason whya court would hold
> the part coming after `If the above Public Domain ...' invalid for
> some reason, and I cannot find any.

Great.

> So, what is your problem?

The problem at hand is to create a legal document that places software
in public domain if possible and, if not possible for legal/local
reasons, assigns that software an OSI license.

>  >   - Can PD+license combination be legal?
>
> You will  be contradicting yourselves.  On one hand, you  declare your
> work to  be in public domain, and  then go on exercise  to your rights
> under the  law of  copyright, namely  grant a license  `in rem'  as we
> lawyers would call it.

Now I am confused. In the beginning of your response, you said that
there is no contradiction because the second part is applicable
``*only* if the `dedication' is not valid for some reason''. Did I
misunderstand?

>  >   - Is the above approach likely to make PD dedications safer?
>
> No.
>
> Rather, it will tend to nullify your actions in dedicating to PD,
> since the courts are likely to say that you contradicted yourselves,
> and therefore your intent was not clear enough, and most likely,
> both the dedication and license might fail.

Can this be fixed? Can the document say something like the template
below?

	The following PD dedication applies to countries
	where it is a valid PD dedication: <CreativeCommons
	text follows>

	In all other jurisdictions (i.e. where the above
	PD dedication is invalid for any reason), the code
	can be used under any OSI-certified license...

In other words, can we word the document so that any reasonable court
would see that we are not contradicting ourselves but trying to
accommodate contradicting/unknown requirements of local jurisdictions?

As discussions on this list illustrate, public domain definition or
even existence for current software differ from country to country and
it is often not crystal clear whether one can put something into a
public domain for people in a given country. There has to be a legal
way to place software into public domain *where it is possible* and
license it elsewhere. In the extreme case, we can even have the
following template:

	The following PD dedication applies to US only:
	<CreativeCommons test for US follows>

	The following PD dedication applies to Canada only:
	<CreativeCommons test for Canada follows>

	The following PD dedication applies to Brazil only:
	<CreativeCommons test for Brazil follows>

	...

	In all other jurisdictions ... use OSI ...

Or is the legal world so badly broken that it is practically
impossible to reliably place software in public domain? Do I have to
release two derivative versions of the same software, one in PD and
one OSI licensed (the "derivation" would be the change of the
licensing file or source file headers, for example)??

Thanks a lot for your thoughts/comments.

Alex.

P.S. If a US citizen can take NASA's US-PD software and license it
     to Australians, can a US citizen can take NASA's US-PD software
     and release it in Australian public domain?
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