certifying non-control
Bizarrely, the law of copyright has made it extraordinarily difficult for a copyright owner voluntarily to give up control. For most of the history of copyright law in the US, there were a million ways to forfeit your copyright. Today, it's not even clear that it is possible.
This creates a problem for some. Ron Suskind, for example, wanted to make sure that the records supporting his book, The Price of Loyalty, were in the public domain so others could draw upon them to verify, or critique, his account of Paul O'Neill's time at Treasury. In principle, the documents should be in the public domain because they were government documents. But there would always be a way for someone to argue that, e.g., the digitization created a separate right, or special marks on the document created a special right, or whatever -- all rendering uncertain what Suskind wanted certain -- namely, that no legal control would be exercised over the use of these digitized documents at all.
Suskind used a Creative Commons' Public Domain mark, which we have modified now to signal either that an author is dedicating work to the public domain or that the author has taken steps to certify that a work is in the public domain (and in so doing, dedicating whatever rights the certifier might be said to have over the work.)
A related struggle seems to be working its way clear in the RSS space. A while ago, Dave Winer released the spec for RSS 2.0 under a Creative Commons Attribution-ShareAlike license. His stated purpose was to assure anyone that he was waiving any control he might have in the spec, and translating any control he might have into a copyleft requirement.
As with Suskind, one might have asked, well, what copyright related control did you have anyway? But that, it seems to me, misses the point: In an area of insane uncertainty, both moves establish clarity. And while the legal control over a spec or even a protocol is just one tiny part of the overall question of how a protocol develops, and whether it is adopted, it does remove an unnecessary question.
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Comments (7)
Larry, thanks for raising this publicly.
Before the transfer into Creative Commons via Berkman, the spec had a copyright/disclaimer that was a clone of that used by the IETF, that disclaimed ownership of the format, and provided liberal terms under which the text of the spec could be repurposed, quoted, excerpted, adapted, basically whatever you want to do with it, as long as you retain the copyright notice and republish under the same terms. It was attempting to be what CC became before CC existed.
Even so, it was widely misunderstood to be controlling. It made me think of the Web as a write-only environment, that people would condemn something they hadn't even read.
During the last great RSS flamewar last summer, I decided to relinquish as much control as I could possibly, beyond what I had already done. I worked it out with the UserLand management that the spec would move off their server, although the fact that was on their server was of no importance as far as I could tell, since anyone could have put the spec on their own server if they wanted to. I preserved the old copyright notice in case anyone wanted to dig through this. If you recall, we asked you (Larry) to review the release and let us know if you had any objections. I recall that you asked a couple of questions and we answered them, and then you gave your blessing.
It would be great if once and for all, you and perhaps some of your colleagues at CC, or some of your law students (perhaps in conjunction with students here at Harvard) could review this, and let us know if any way we are controlling what people can do with the RSS 2.0 format or spec. My claim is that all we're controlling is attribution, authorship credit, which seems quite reasonable to me, since writing the spec was a lot of work, and generally I like to get credited for my work. Nothing more than that is going on.
I'm going to point to this tomorrow morning with the recommendation that people post their concerns here, to place this partisan discussion in a neutral context, in hopes that we can get a clear netural statement that we can refer to later, so we can move beyond any claims that RSS is controlled by anyone. If this is not okay with you please let me know.
Sorry for the typos, and spelling errors, it's late and this is a long message. No time to proof it. Maybe there should be a CC disclaimer for this? ;->
Regarding Dave Winder's comment about the
copyright in the format or specification,
readers should know that the U.S. copyright
law clearly disallows copyright in procedure,
process, system, and method of operation
(Section 102(b)). Also, there is a doctrine
called "Merger Doctrine". It says that if
an expression is too close to the idea that
there is no way to express the same idea
in a different way, the expression cannot
have copyright. This restriction is due
to the freedoms of speech and press in
the First Amendment.
What this means is that anyone or any
entity who attempts to claim copyright in
format and specification (which belong
to the category of system) is not doing
the right thing. Also, because there is
no copyright in the system to begin with,
there is no need to disclaim copyright.
Yet, it is very common practice that
people and entities routinely ignore
(intentionally and unintentionally)
the copyright law and try to claim
copyright as much as they can in anything.
(In case readers wonder how a system
can be controlled, only patent can do that.
Trademark can provide control but it
is very limited.)
Joseph Pietro Riolo
<riolo@voicenet.com>
Public domain notice: I put all of my expressions
in this comment in the public domain.
Sorry, I misspelled Dave Winer's last name in my
previous post.
Joseph Pietro Riolo
<riolo@voicenet.com>
Public domain notice: I put all of my expressions
in this comment in the public domain.
Dave, what you did is establish in the minds of most ordinary people that the specification may only be used in sharealike projects.
Most people believe legal claims and copyright notices, even when they are baseless. And I suppose that there is some jurisdiction where that license is binding and the work really can only be used in sharealike projects.
If you'd like to help people without legal understanding use it, place everything you possibly can into the public domain, for that's just about the only thing which most people understand fairly well as meaning "you can use this". Add in a request for credit and you'll get decent cooperation from most people.
As a second best solution, or in addition, license it under every license type you can find which you don't disagree with, so people can say "I use that, so I can use this". And don't forget to say "You can use any of these you like; giving the list doesn't mean that you must simultaneously comply with them all. Just pick the one or ones you want and use them".
Sad... but that's what three months of tring to educate people at Wikipedia's possible copyright infringements page has taught me.
In response to Consumerium's comment:
The difference between your position and Dave
Winer's position is that you don't attempt to
claim copyright over the uncopyrightable items
such as ideas and concepts, do you? I can read
your works, glean ideas from your articles, and
express the same ideas in my own words. 100
other people can look at your articles and
express the same ideas in 100 different ways.
You may not like different variations in the
expression of your ideas but that is what the
freedoms of speech and press allow.
Dave Winer, on the other hand, attempts to claim
copyright over the specification of a system
called RSS. While the copyright law allows him
to claim copyright in the creative description of
the system, the same law does not allow him to
claim copyright in the system.
The share-alike license is supposed to be limited
to the copyrightable things but people have misused,
unknowingly and knowingly, it to cover the
uncopyrightable things.
(Your link to bad copy problem does not work.
Can you provide the right link?)
Joseph Pietro Riolo
<riolo@voicenet.com>
Public domain notice: I put all of my expressions
in this comment in the public domain.
Consumerium: The "bad copy problem" does not exist because you are assuming goals that are not shared. It is not every OS developer's goal to produce a system that can displace Microsoft Windows. Some are developed to deliver software freedom to their users (Debian GNU/Linux, one of the most popular GNU/Linux systems, for example).
I'm all for ensuring that the freedom to share and modify software in derivative works, but history shows there is more than one way to achieve this end. The programmers behind the various BSD systems demonstrate one way--they license their works as non-copylefted free software because they don't want to place limits on who can share and modify their work. Their work is worth celebrating because it's a genuine contribution to the free software community. These hackers teach others to understand their goals and they encourage others to license with non-copylefted free software licenses. Their way is not as close to foolproof as a copylefted free software license is, but their approach is also not legalistic or complex.
Wikinfo - a better (but English only) internet encyclopedia concisely summarized here has an innovative solution to this problem:
"Unless used with permission of the copyright holder under the terms set forth in the article or licensed under a version of the Creative Commons, or some other Open Source License, all text is available under the terms of the GNU Free Documentation License. Images, some of which are used under the doctrine of Fair use doctrine or used with permission may not be available."
Nice solution.