Misunderstanding of PD and copyrights

From: David Mertz <voting-project_at_gnosis_dot_cx>
Date: Tue May 11 2004 - 10:43:29 CDT

On May 11, 2004, at 3:49 AM, Edward Cherlin wrote:
> There are too many examples of material in the public domain being
> altered slightly and copyrighted as a new work, thus becoming
> proprietary.

There may be a way to parse the above comment as correct. But it tends
to suggest a somewhat common misunderstanding.

Material that is in the public domain cannot be removed from the public
domain by copyright claim (with the unfortunate exception of the Sony
Bono Copyright Extension Act that retroactively extended copyright to
works that had lapsed into PD with age; the SCOTUS did wrong in
Eldred).

However, it *is* true that PD work can serve as the basis of derived
works that *are* copyrighted, and licensed in proprietary ways (or not
at all). In this respect, the "danger" is exactly the same as the
danger that GPL enthusiasts find with BSD-ish licenses (post
advertising clause). A work that is Free might serve as the basis for
a derived work that is unfree. But that fact is not a bug with BSD-ish
licenses and PD, its a design principle.

> It happened to a friend of mine, John Sankey, who put his Scarlatti
> harpshichord MIDIs in the public domain. The new owner, whose
> modifications are NOT improvements, has been threatening sites that
> publish Sankey's originals.

I have no trouble believing this happened. And I have no trouble
believing that the creator of the (inferior) derived works are real
pricks, who can probably effectively shut down the PD distributors.

But as a matter of law, the owner of the derived work is WRONG. S/he
has no legal right to impede distribution of the PD originals. Of
course, most people who distribute PD work out of a spirit of community
don't have a lot of money to spend on lawyers to respond to C-and-D
nastygrams; people willing to buy lawyers can often bully well-meaning
people into ceasing good activities.

I can easily cite dozens of examples of people distributing GPL'd works
who have gotten nastygrams alleging derivation from proprietary works,
DMCA violations, patent issues, and other alleged grounds. In a lot of
cases, the poor volunteers cave in rather than go to court, no matter
how right they are on the law.

No license, and no amount of assignments or changelog quality, can
prevent barratry. At best, it can make cases easier to win.
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Received on Mon May 31 23:17:34 2004

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