On Tue, 3 Aug 2010 03:41:09 pm Scott Moore wrote:
With all due respect, no. A work openly and widely distributed with full consent and knowledge of the authors, free of restriction, constitutes public domain.
You don't actually know what Public Domain means, do you? PD does not mean "free to distribute", or "openly distributed". It means there is no longer any copyright on the work. See, for example, the Creative Commons movement, which allows authors to publish works for free distribution *without* giving up copyright.
The GPL only works because of copyright. If giving away a work for free put it into the public domain, the GPL would be meaningless. See this article for an explanation of how the GPL works:
http://lwn.net/Articles/61292/
The laws governing what is and isn't in the public domain differs from country to country. Talking about what is in the PD without specifying which country is like talking about the average wage for a worker without mentioning what country and profession you are talking about.
See, for example:
http://www.gutenberg.org/wiki/Gutenberg:Copyright_FAQ http://www.gutenberg.org/wiki/Gutenberg:Copyright_How-To
for discussions on the complexity of deciding what's in the public domain and what isn't, by people who make their living at this, and risk extremely large penalties if they get it wrong.
The only precedent in the courts for a work being the basis of a suit after it was freely distributed were where the author did not consent or did not know. For an author to go to court and try the argument that he/she changed his/her mind and now wants the rights back, is legally ridiculous and has never happened.
If the author explicitly places their work in the public domain (which isn't even possible under some legal jurisdictions), then no, they probably can't get it back. But if an author merely allows redistribution, without granting an explicit licence, what happens when the author passes on and his or her heirs become owners of the copyright? What guarantee do you have that they will continue turning a blind eye to redistribution and derivative works?
As proof of what constitutes public domain, there is the Berne convention itself, the text of which is freely distributed, without any sort of notification of its' status as a public domain work. If the Berne convention did not consider its own text to be public domain, then how would anyone know what is in it?
That's not even wrong.
I can assure you that many countries routinely place their laws and treaties under copyright, e.g.:
http://en.wikipedia.org/wiki/Crown_Copyright
My late friend and lawyer advised me on the matter, and confirmed that all that is required to be considered a public domain work is that a document has been distributed with the authors knowledge (not even consent) without charge or restriction. Any case before the court would turn around the fact of whether or not the author knew it was being distributed, not even if he/she consented, i.e., knowingly doing nothing about its distribution also constitutes public domain.
Either you have misunderstood your late friend, or he wasn't an intellectual property lawyer and consequently did not know what he was talking about. The idea that something enters the public domain because the author knows (not even consents to, but merely *knows*) that somebody else is giving away copies is so ridiculously foolish that I don't know where to even begin.
Possibly you are confusing copyright with trademarks, where a trademark holder must actively defend the mark or else lose the rights to it. There is nothing analogous in copyright law. Believe me, George Lucas hasn't lost the copyright to the Star Wars franchise because he knows about the "Turkish Star Wars" derivative work.
[...]
GNU wishes to produce software that cannot be legally used for paid work, or the basis for paid work.
That statement is so patently ridiculous that you have lost all credibility with me.