[License-review] [License-discuss] CC0 incompliant with OSD on patents, [was: MXM compared to CC0 ]

[Lawrence Rosen]

After receiving a couple of private comments, I want to add something else.

We can spend a large amount of time discussing the legal effects of a public
domain copyright dedication. I think that would be a waste of our time. Can
rights be abandoned? And then recaptured? Are there implied warranties or
liabilities? What about express or implied patent grants? 

This isn't a law school exam, folks!

Suppose we give Alexander Terekhov and Prof. Bernstein the benefit of the
doubt. The fact is that, in the two cases Alexander cited, and despite the
courts' apparent approval of the existence of the public domain, the courts
actually ruled *in these cases* that there was no effective public domain
dedication! So the courts resorted to analyzing contracts and licenses!

CC0 -- like most other of our FOSS licenses, I might add -- has never been
tested in court. My guess is that CC0, like GPLv2 with all its known
shortcomings and most other of our licenses, will work out just fine for
lots of works and will not actually be challenged anyplace other than these
hypothetical threads on this list. (Except for details like the linking
controversy, which I'll never let die...!)

So we're faced with the same decision: Should we approve the widely-admired
CC0 license despite its known disadvantages in some situations for computer
software -- particularly with respect to patents? (I know many people who
feel the same way about the patent provisions in other already-approved
licenses.) 

Can we please decide this without doing a legal and business analysis of the
glorious copyright public domain and the frightening world of patents?

FWIW, I already voted +1.

/Larry


> -----Original Message-----
> From: license-review-bounces at opensource.org [mailto:license-review-
> bounces at opensource.org] On Behalf Of Lawrence Rosen
> Sent: Thursday, March 08, 2012 3:20 PM
> To: license-review at opensource.org
> Subject: Re: [License-review] [License-discuss] CC0 incompliant with
> OSD on patents, [was: MXM compared to CC0 ]
> 
> [paring the distribution list]
> 
> Thank you, Alexander, for a clear rejoinder to my essay arguing that
> the
> public domain is not effective. The case you referenced in your email,
> Hampton v. Paramount Pictures, 279 F.2d 100 (9th Cir. Cal. 1960),
> stands for
> the proposition that, at least in the Ninth Circuit, a person can
> indeed
> abandon his copyrights (counter to what I wrote in my article) -- but
> it
> takes the equivalent of a manifest license to do so. :-)
> 
>    Rights gained under the Copyright Law, 17 U.S.C.A. 1 et seq.,
>    may be abandoned. Abandonment of such rights, however, must be
>    manifested by some overt act indicative of a purpose to surrender
>    the rights and allow the public to copy. National Comics
>    Publications v. Fawcett Publications, 2 Cir., 191 F.2d 594, 598.
> 
> In the Hampton v. Paramount case, by the way, the court concluded that
> Paramount had *not* abandoned its copyright despite numerous writings
> brought into evidence. Even the equitable doctrines of estoppel and
> laches
> were rejected by the court.
> 
> For the record, I have already voted +1 to approve the CC0 public
> domain
> dedication and fallback license as OSD compliant. I admit that I have
> argued
> for years against the "public domain" as an open source license, but in
> retrospect, considering the minimal risk to developers and users
> relying on
> such software and the evident popularity of that "license", I changed
> my
> mind. One can't stand in the way of a fire hose of free public domain
> software, even if it doesn't come with a better FOSS license that I
> trust
> more.
> 
> /Larry
> 
> 
> > -----Original Message-----
> > From: license-review-bounces at opensource.org [mailto:license-review-
> > bounces at opensource.org] On Behalf Of Alexander Terekhov
> > Sent: Thursday, March 08, 2012 1:41 PM
> > To: license-discuss at opensource.org; OSI License Review; OSI Board
> > Subject: Re: [License-review] [License-discuss] CC0 incompliant with
> > OSD on patents, [was: MXM compared to CC0 ]
> <snip>
> 
> 
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