Public Domain

[RM notes: In the following, "OSI" is the Open Source Initiative, inventor of and regulatory body over the concept of "open source" software. OSI, among other things, maintains the canonical list of open-source software licences. As such, it's occasionally asked to add "public domain" to the list of OSI-approved open-source licences. Most discussion quoted below is from OSI's main discussion mailing list, "license-discuss". Some relevant discussion threads from elsewhere are also quoted.]

Reply-To: lrosen@rosenlaw.com
From: "Lawrence E. Rosen" lrosen@rosenlaw.com
To: "'Rick Moen'" rick@linuxmafia.com, license-discuss@opensource.org
Subject: RE: Please add "Public Domain" to "license" list
Date: Fri, 14 Mar 2003 15:21:43 -0800
Organization: ROSENLAW.COM LLP

You've answered it beautifully. Give this guy a law degree! :-)
/Larry Rosen

-----Original Message-----
From: Rick Moen (rick@linuxmafia.com)
Sent: Friday, March 14, 2003 10:10 AM
To: license-discuss@opensource.org
Subject: Re: Please add "Public Domain" to "license" list

Quoting David A. Wheeler (dwheeler@dwheeler.com):

> Hello — I'd like to ask OSI to add "Public Domain" to the open source
> software license list at:
> http://www.opensource.org/licenses/

I'm not sure there's reasonable consensus on the legal effect of declaring one's copyrighted work to be in the public domain.

In the context of USA Federal law, at least, I've looked in vain through 17 USC to find any provision permitting a copyrighted work to become public domain before expiry of its copyright term.

People have sometimes claimed that caselaw has interpreted public-domain declarations as irrevocable licences for gratis usage by anyone — but I haven't seen citations, let alone any showing that wide legal precedent exists. Moreover, it seems a-priori unlikely that an author could excuse himself from any duties that go with copyright ownership, though such a declaration: Otherwise, it'd be a dandy way to evade product-liability lawsuits.[1]

It seems possible, even, that a public-domain declaration might have no legal effect. All told, I don't know if the OSI should want to put its stamp on this particular can of worms.

(Disclaimer: IANAL. Fortunately, the above does not contain legal assertions, only questions I think are relevant.)

--
Cheers,                                   "My file system's got no nodes!"
Rick Moen                                 "How does it shell?"
rick@linuxmafia.com

[1] I'm not convinced this ploy would work: Per my understanding of tort law, it depends on the closeness of relationship a tort defendant can be proved to have to the property, and might depend on the applicable jurisdiction's unclaimed/abandoned-property and escheat statutes. The main point to note is that the various parties' rights become debatable in law, where they would not with, e.g., a minimal simple-permissive licence like "Do whatever the hell you want with this codebase. Copyright (c) 2007 Joe Owner."

Since the question is often asked, among the parties likely to challenge in court an ostensible PD declaration are the donor's heirs, creditors, etc.

From rick Mon Jan 6 21:52:29 2003
Date: Mon, 6 Jan 2003 21:52:29 -0800
To: vox@lists.lugod.org
Subject: Re: [vox] expectation of privacy on an open mailing list?
User-Agent: Mutt/1.4i

Quoting Richard S. Crawford (rscrawford@mossroot.com):

> According to copyright law, as soon as something is put down in tangible
> form — written on paper or saved to an electronic file such as an e-mail
> — then it is automatically copyrighted. This very e-mail that I am
> writing right now is, in fact, protected by copyright law. The only way
> that something is not copyrighted is if the creator of a work explicitly
> states that the work is to be placed in the public domain.

According to some who've studied the USA Copyright Act (and similar bodies of law in other jurisdictions), there's actually no provision in law for placing a work in the public domain. Opinion is divided about the effect of such a statement: Some say it has no effect; others say that constitutes an irrevocable licence for unlimited use. Nobody will know for sure unless/until a judge rules on the question.

It seems unlikely that the law would permit putting a creative work in the public domain, as that would permit evasion of liability. However: IANAL. TINLA.

--
Cheers,                                   "My file system's got no nodes!"
Rick Moen                                 "How does it shell?"
rick@linuxmafia.com

From rick Mon Jan 6 23:53:40 2003
Date: Mon, 6 Jan 2003 23:53:40 -0800
To: vox@lists.lugod.org
Subject: Re: [vox] expectation of privacy on an open mailing list?
User-Agent: Mutt/1.4i

Quoting Richard S. Crawford (rscrawford@mossroot.com):

> From what I can tell, the very definition of public domain is in
> question. "It's a moving target," I read in one article about the
> subject.

The duration of copyright has changed over time, because Congress keeps monkeying with it,[1] but some people have actually done some checking to identify what software has become public domain through actual lapse of the statutory coverage. What it boils down to is that no software of any conceivable modern use has yet become public domain.

Creative works (including software) published or generated directly by the Federal government are by law not covered by copyright, and thus are public domain ab initio. However, if the work was created by a non-government contractor, it became copyrighted upon creation, and nothing prevents the Feds from owning such copyrights (e.g., as part of the deal with the contractor).

Also, prior to 1978-01-01, it was possible to lose copyright protection through pilot error, e.g., by publishing the work without a valid copyright notice.[2] Beginning 1978, however, to bring US law in compliance with treaty, copyright has come into existence automatically whenever you put a (covered) creative work "in fixed form" — and owners got a five-year grace period to fix any broken copyright notices. It's possible that some software became public domain through that mechanism, but not much — and you'd potentially have to prove it, in the event of dispute.

Last, copyright coverage applies only to "creative" works. One might successfully argue that a five-line shell script has insufficient creative content to be covered by copyright law. Once, a couple of decades back, one of the telcos attempted to bar other companies from republishing its White Pages telephone directory listings, claiming a compilation copyright[3] over the arrangement of names and telephone numbers. It lost completely, because the court said putting together a telephone directory simply isn't a significantly creative act.

> So, I guess we can just assume that everything we write and see is
> copyrighted and we should be behave accordingly.

Yes, but you shouldn't overestimate the implications. For one thing, the courts recognise licences under copyright granted though oral speech, writing, or conduct. Thus, in posting a message to a mailing list or newsgroup, you're impliedly granting a whole raft of permissions for the distribution and use of your work. The extent of that implied licence is of course arguable — by those willing to spend money and time on court battles. And, of course, some usage is explicitly permitted by the "fair use" provisions (reproduction of limited excerpts for purposes such as criticism, comment, news reporting, teaching, scholarship, or research).

I was once threatened with a copyright-violation lawsuit for archiving a collection of newsgroup posts on my Web/ftp site. I considered the matter, and then ignored the threat.

If, hypothetically, your use of someone's writings is outside any implied licence and doesn't qualify as fair use, it could be found by some court to be copyright infringement, which is a tort (a civil wrong). But even then, it's not necessarily a serious matter, as courts consider what's at stake in deciding how big a tort something is. I estimate that someone suing for archiving of Usenet posts would be told "Please get out of my courtroom."

> Rick, how much do I owe you for the paragraphs below?

<grin> Hearty handshake or a beer, whichever's more convenient.

Again, momma ain't raised no lawyers, so this ain't legal advice, y'all.

[1] Entirely different, and most annoying topic, that. L'havdil.

[2] Which basically means just "Copyright (C) MyName 2003". The phrase "All Rights Reserved", last I heard, is a legal fossil that no longer means anything except in Bolivia and Honduras — but even that may have finally gotten fixed by treaty. Technically, just the word "Copyright" and not the (C) is enough, for that part — or the © symbol. But "Copyright (C)" serves as a nice belt-and-suspenders formula.

[3] A compilation copyright is the monopoly granted over the arrangement of other people's works, e.g., by the editor of a collection of short stories. On my old BBS, I asserted compilation copyright over the design of the BBS as a whole.

--
Cheers,                                   "My file system's got no nodes!"
Rick Moen                                 "How does it shell?"
rick@linuxmafia.com

Date: Mon, 29 Dec 2003 23:50:29 +0000
From: Peter Fairbrother <zenadsl6186@zen.co.uk>
To: license-discuss@opensource.org
Subject: Re: Why?

Jan Dockx wrote:

> Why do organizations that release software under a permissive
> non-copyleft license, use a license in the first place?

I'd guess the idea is so that other people can feel free to (re)use their code / software. If there is no licence then the other people wouldn't feel free to use it.

The other part of the reason is that anything else is far more legally uncertain than a licence.

> What is the difference between BSD [licensing] and public domain?

Some say the difference is that a BSD [licensing] requires the writer's name to be associated with the work, which it does — and, for some writers, that is the point.

But for the code (re)user, it is in any case necessary to know who wrote the code. Any code. All code. As soon as code is written someone has copyright in it, that's the law, and using code that is anonymous could lead to problems later — the real writer (or even someone who claims to be the real writer) might take you to court.

The important bit of licensing is to avoid problems later, and that means not getting taken to Court later. That's what a good lawyer or legal department is for, if a case even looks like it might get to court you have already lost money and time. That's platitudinous, okay, but it's what the potential code (re)user is actually, really concerned about.

And the potential code (re)user is the important one here, not the writer. It's like the movies; the writer can and often does get shafted — but, even so, a canny writer will get paid.

You can write all the code you like, but if no-one (re)uses it, it doesn't matter what licence is involved. Most people who write "free" code want other people to (re)use it, or at least to feel able to (re)use it. That means that code writers should consider potential users' needs, when they consider licences. If you are writing "free" code, you need to tempt potential code (re)users with a tender, reliable licence.

OpenBSD has an interestingly different take here ... :)

A more fundamental difference between BSD [licensing] and "public domain" is that BSD [licensing] is far more certain legally. "Public domain" refers to code that is out of copyright, i.e., code whose copyright has expired, or in past times code whose copyright was not properly asserted or maintained — but nowadays there is no need to assert or maintain copyright, and there are those, of whom I am one, who assert that it is impossible to "put work in the public domain".

It can't be done.

There are those who disagree with that position, in US law — in UK law it is pretty much accepted that it's impossible — and they may even be right; I don't know, though I doubt it. But they don't know, either. It hasn't been tested in Court. And that makes code (re)users very nervous.

The BSD licence hasn't been tested in Court either, AFAIK — but it has been around a long time, the concept of licences has been well tested, and people are fairly confident it will stand a test. Potential code (re)users have confidence in it.

Note added later, now intoxicated: It's strange, but the confidence in the licence itself actually makes the licence more certain. There is a Legal Principle which says that the law means what "the people" expect it to mean, and Courts follow it, unless there are good reasons not to. That principle strengthens the legal security of the BSD licence. Someone else might tell you it's name, if I don't get sober and remember it first).

The other problem is: "Will this particular method actually work?" There are lots of supposed methods, declarations, dedications, abandonments, etc., although personally I don't think any of them will work. But will the particular method chosen by the writer to "put code in the public domain" be accepted in a Court? If the heirs of the writer are fighting, along with the BigCorp they have sold an option on the rights to, against a little guy? Maybe this one will, and this one won't?

Any potential (re)user with half a brain is of course out of State by now, and accelerating hard.

You might instead try and give the rights to "everybody"; but then "everybody" has to agree to accept them, an impossibility. Or perhaps you give them to "anybody who wants them", but then the people you give them to might prevent other people using the code; so, give a licence rather than the rights themselves. Now, you're getting close to BSD [licensing], which is (almost) giving a licence to the rights to anyone who wants one.*

> There is a lot of talk about the possible appropriation of open work
> by others, and the possible adverse effect on the original authors
> (a third party might claim intellectual copyrights and sue you).

Not possible in fact, mostly. In appearance, though, things may differ — you may have written something first, but can you prove it? 'cos if you can, you'll win.

...assuming you didn't write it on commission, or under contract, or while employed, or... what state / country are you in again?

> Are there any documented cases of such events? Is this even a real
> threat?

Of people stealing IP because the originators didn't have proof that they were the originators? Loads of 'em.

> And why is there a disclaimer? Are we really afraid that we will be
> sued for damages by something we give away for free (as in free beer)?

Yep. It's mostly from consumer law, it concerns the supply of goods — and it doesn't matter if they are paid for. Also, it's like any other action you take — you have to accept some legal responsibility for it. If it kills someone....

> Are there any documented cases of this happening? Or is this
> self-inflicted FUD?

It's happened in almost everything else for sure, and probably already in free software too. Keep them ol' disclaimers. They're there for a purpose.

*I really admire the BSD license; only problem is that it doesn't make clear that a licencee has the right to grant licences (etc.). That's implicit rather than explicit — tho' it's still very implicit. In an age when it is at best uncertain that "putting work in the public domain" is even possible, then it's the best way to "free" work IMO.

It should also be remembered that "freeing" work is not necessarily the point of source availability (which not the same as "open-source"). E.g., crypto software might be open-source (so people can criticize it and certify binaries), but be completely proprietary.

IANAL

Date: Wed, 18 Feb 2004 14:10:39 -0500
From: jcowan@reutershealth.com
To: OSI license discussion <license-discuss@opensource.org>
Subject: Re: making public domain dedication safer

Alex Rousskov scripsit:

> Or is the legal world so badly broken that it is practically
> impossible to reliably place software in public domain?

Pretty much. Dedications to the public domain have been rare to nonexistent in the past, and nobody is quite sure whether they can actually be achieved or not in any one jurisdiction, much less across all jurisdictions. Much safer to make use of the well-established mechanism of licensing, using some machinery such as the MIT, BSD, or AFL licenses.

In general, it is not surprising to find a lack of legal machinery for doing what until now very few people have wanted to do. Until 1976, it was trivial to keep documents out of copyright in the U.S. — just publish them without a copyright notice.

> 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)?

If you must, but it seems unnecessary to me just to make a point about the evils of copyright. Evil or not, we're stuck with it under the current worldwide regime, where to a first approximation everything is in copyright.

RM notes: OSI General Counsel Lawrence Rosen explained this matter further in http://www.linuxjournal.com/article/6225.

From rick Fri Sep 24 16:07:10 2004
Date: Fri, 24 Sep 2004 16:07:10 -0700
To: license-discuss@opensource.org
Subject: Re: For Approval: Allegro giftware license
X-Mas: Bah humbug.
User-Agent: Mutt/1.5.6+20040722i

Quoting Elias Pschernig (elias@users.sf.net):

> I'd like to use the MIT license now instead of approving the current
> one.. but after proposing the license change a user of the library
> raised a problem: The MIT license says that you must retain the license
> notice in re-distributions and even substantial portions of the code.

Is that a problem? It's only about 20 lines of comment code (or accompanying README).

If you want, you can certainly write a shorter and even more permissive licence, e.g.,

Copyright (c) 2004 George Tirebiter
Do as thou wilt, shall be the whole of this licence.

It wouldn't be OSI-approved, but it'd be quite obviously open source. (It'd leave you open to possible warranty claims, but at least it's short.)

> This isn't required by our current license - we don't care if someone
> releases all of it under a new name and makes that GPL for example.

Er, only the copyright holder can, by law, determine the terms of usage for a given instance of his codebase. Other people lack title.

> Would MIT [i.e., the MIT license] allow that?

No, nor can any other licence.

> The above user suggested to change the license to
> "public domain" instead.. but I can't find that in the list of OSI
> licenses.

This matter badly needs to be FAQed. (That is not a complaint.)

1. Ever since adoption of the Berne Convention, copyright arises automatically at the moment of creation of any creative work in the statutorily-covered categories (except in exceptional cases such as works created directly by the USA Federal government). Prior to that, omitting copyright notices on distributed copies of the work could cause the work to go directly to the public domain. Not any more. I would speculate that memory of the old regime, in part, is causing lingering misconceptions about "public domain" works.

2. Because of that, works without explicit licence indications are not (any more) public domain, but rather are proprietary by default, since copyright law reserves many important rights (redistribution, creation of derivative works) by default to the owner, absent some form of permission grant to the contrary. (This is incidental to my line of reasoning, but I just thought I'd point it out.)

3. The only way clearly indicated in law for a copyrighted work to become public domain — absent extraordinary judicial steps — is for its term of copyright to expire.

4. Declarations by copyright holders that they are "contributing to the public domain" some work they own, thus, have an unknown effect. A judge might rule them to have no force, in which case likely the work's default proprietary licensing would apply until expiration. Or the judge might rule that the owner's substantive intent was to grant universal permission to use the work for any purpose. Moreover, the effect might differ in various jurisdictions.

Therefore, most commentators on this mailing list would tell you to carefully avoid "changing the licence to public domain". (NOTE: "Public domain" would not be, strictly speaking, a licence, but rather an attempt to nullify the copyright ownership interest in question. That alone explains why it isn't listed on the "list of OSI licences".)

A few other people on this mailing list have strongly if somewhat vaguely disputed the point in the past. Many of them tend to point to the Creative Commons "public domain declaration" pages as somehow allegedly proving that the notion has legal merit.

By coincidence, my mother-in-law happened to have attended a lecture at Stanford by Creative Commons co-founder (and legal scholar) Prof. Lawrence Lessig, who expressed pretty much exactly the above sentiments about "public domain" works, during (I think) the Q&A period at the end. I wasn't present, or I would have asked him about the Creative Commons page, and whether it shouldn't be either removed or heavily annotated since he feels (as I do) that "public domain" declarations are a doubtful concept.

Date: Fri, 1 Oct 2004 15:42:38 -0700
From: Rick Moen, rick@linuxmafia.com
To: license-discuss@opensource.org
Subject: Creative Commons and public domain declarations
X-Mas: Bah humbug.
User-Agent: Mutt/1.5.6+20040722i

News about impending changes to the CC "public domain declaration" page, http://creativecommons.org/licenses/publicdomain/.

I've snipped a brief part of my exchange with Prof. Lessig that concerned his challenge-response e-mail checker, and also snipped redundant quoted text.

From: Rick Moen, rick@linuxmafia.com
To: lessig@pobox.com
Date: Fri, 24 Sep 2004 16:34:45 -0700
Subject: Query: Should Creative Commons encourage "public domain declarations"?
X-Mas: Bah humbug.

Apologies for length. The gist of what follows (from OSI's mailing list for proposed software licences) is the same point you made last night at Stanford about "public domain declarations" — and Creative Commons's encouragement of same, nonetheless.

Could you get CC to at least add a disclaimer?

[RM: snip copy of post to license-discuss@opensource.org about lingering questions concerning the legal effect of public domain declarations, resulting from copyright law changes to implement the Berne Convention.]

From: Lawrence Lessig, lessig@pobox.com
To: Rick Moen, rick@linuxmafia.com
Date: Sun, 26 Sep 2004 19:37:19 -0700
Subject: Re: Query: Should Creative Commons encourage "public domain declarations"?
X-Mailer: Apple Mail (2.619)

Actually, it's a bit more complicated. What I said was it wasn't clear you could make a public domain dedication. But CC has taken lots of steps to frame the dedication in as complete and reliable way as possible. We know of no test cases, and we'd be happy to see a test case. But so long as we have a good faith belief that you can dedicate to the public domain, we've offered this license. We certainly don't believe you can dedicate merely by saying you do. But our process does more than that.

From: Rick Moen, rick@linuxmafia.com
To: Lawrence Lessig, lessig@pobox.com
Date: Sun, 26 Sep 2004 22:50:01 -0700
Subject: Re: Query: Should Creative Commons encourage "public domain declarations"?
X-Mas: Bah humbug.

Hi, Prof. Lessig. Thanks for the correction. (I had an account of what you said at second hand, but any inaccuracy may well be mine.) Thanks also for your time.

I wonder if CC would consider at least warning people of potential legal issues. (And different results might pertain in different jurisdictions, even though CC's declaration aims to be under US law, right?)

Anyhow, thank you for all your good work and exemplary citizenship. (I'm sure your have more important things to do than argue with open source people. *grin* )

From: Lawrence Lessig, lessig@pobox.com
To: Rick Moen, rick@linuxmafia.com
Cc: Glenn Brown, glenn@creativecommons.org
Date: Fri, 1 Oct 2004 17:38:35 -0400
Subject: Re: Query: Should Creative Commons encourage "public domain declarations"?
X-Mailer: Apple Mail (2.619)

We should make some note. I'll pass it by mgmt.

2008-01 update: Creative Commons has published, in beta form, a "CC0 Waiver" by which a copyright owner asserts that he/she aspires to abandon his/her copyright title and leave nothing for heirs and successors, with the explicit aim of making the work available to others without restriction.

This still leaves most of the usual troubling questions, including whether it will have the intended effect in various legal jurisdictions, plus whether it will merely render the work abandoned property, whose new ownership -- and subsequent licensing restrictions -- would then be decided by local abandoned-property and escheat statutes.

On the bright side, the CC0 Waiver states that if owner cannot effectively disclaim title in any jurisdiction, he/she grants a perpetual licence to use the work for any purpose -- which is a good idea, but begs the question: Why not just use such a licence in the first place?

Date: Tue, 31 Jul 2007 09:02:05 +0100
From: [correspondent's mailbox redacted]
To: rick@linuxmafia.com
Subject: Fwd: evaluation of needed gnome integration?

Hi Rick!

Thought this might be of interest :-)

---------- Forwarded message ----------
From: [commentator mailbox redacted]
Date: 31-Jul-2007 02:55
Subject: Re: evaluation of needed gnome integration?
To: (a private mailing list for coders)

On Tue, Jul 31, 2007 at 12:30:38AM +0100, [correspondent mailbox redacted] wrote:

> Okay, its a sensible play, although to me, if its a tutorial, it
> shouldn't matter if its copyleft or not. Still, "Not copyrighted, in
> public domain." is actually not a safe way to achieve your goal, since
> legally those words carry no weight.
> http://linuxmafia.com/faq/Licensing_and_Law/public-domain.html
> explains.

I'm doubtful how accurate that information on that page is: the author of the argument claims to have "looked in vain ... to find any provision [to contribute copyrighted work to the public domain]".

I'm afraid he must not have looked very hard. 37 CFR 201.26, "Recordation of documents pertaining to computer shareware and donation of public domain computer software", clearly states:

"Public domain computer software means software which has been publicly distributed with an explicit disclaimer of copyright protection by the copyright owner."

-- http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?TITLE=37&PART=201&SECTION=26&YEAR=1999&TYPE=TEXT

So I presume that Rick Moen is wrong: authors of software CAN easily contribute their work to the public domain in the U.S.

Cheers,
[commentator's name]

Date: Tue, 31 Jul 2007 02:45:50 -0700
From: Rick Moen (rick@linuxmafia.com)
To: [correspondent's mailbox redacted]
Subject: Re: Fwd: evaluation of needed gnome integration?
X-Mas: Bah humbug.
User-Agent: Mutt/1.5.11+cvs20060403

[Please pardon a bit of black humour and shortness of temper, below. I've had an odd, and rather long, day.]

Quoting [correspondent's mailbox redacted]:

> Hi Rick!
>
> Thought this might be of interest :-)

[Commentator's] ellipsis is placed as if strategically designed to obfuscate. I'll be generous and assume that reflects ineptitude rather than malice. He wrote:

> I'm doubtful how accurate that information on that page is: the author
> of the argument claims to have "looked in vain ... to find any
> provision [to contribute copyrighted work to the public domain]".
>
> I'm afraid he must not have looked very hard. 37 CFR 201.26,
> "Recordation of documents pertaining to computer shareware and
> donation of public domain computer software", clearly states:

The full sentence I wrote was of course "In the context of USA Federal law, at least, I've looked in vain through 17 USC to find any provision permitting a copyrighted work to become public domain before expiry of its copyright term." (Emphasis added -- and the reason for that emphasis will become clearer in a moment.)

However, let's ignore what is in context either gross ineptitude or a rather unsubtle bit of dishonest rhetoric on [commentator's] part, and look instead at Code of Federal Regulations title 37 section 201.26, which [commentator] then cited in part, and of which I was indeed aware.

You'll notice that the drafters appear to have been more than a little confused: The definition of "public domain computer software" for purposes of 37 CFR 201 is at odds with that in fundamental copyright statutes (17 USC).[1] That's problematic for the CFR title's authority, because -- you see -- the Code of Federal Regulations is regulatory law from Federal agencies and departments (the Executive Branch bureaucracy), and as such inherently subordinate to the United States Code (e.g., 17 USC), in which Congress lays down primary statutory law. The United States Code, in which Congress's duly passed bills get recorded, constitutes the "enabling legislation", establishing the parameters within which Federal departments and agencies then may pass regulatory law, subject to Congressional review.

I am inferring that [commentator] believes that regulatory law trumps Congressional statutes. ;-) It's more likely, however, that he just knows fsck-all about the nation's legal environment, and just posted the first search-engine match he found without bothering to understand it.

Oops.

Anyhow, the cited regulatory provision was drafted (technically, amended) in 1999, not by Congress or any other legislative body, but rather by the Library of Congress's Copyright Office. Guess what? The Copyright Office isn't entitled to decide what is and is not truly public domain in the USA: Only Congress can.

Congress did declare that, as part of the enabling legislation (17 USC). Public domain creative works in the primary, main sense of the term is works that are either public domain ab initio (e.g., works created directly by the Federal government) or through expiration of the copyright term. No other means have been declared by statute or by caselaw.

The LoC Copyright Office can declare what is "public domain" within the limited senses applicable to 37 CFR. That is, copyright holders can contribute copies of those works along with statements of their desires to "disclaim copyright protection", and those copies will be filed with a bit less paperwork by Copyright Office employees, as they'll probably not be obliged to be quite so careful about making sure they have permission to possess copies. What the Copyright Office cannot do is declare by fiat that the copyright title no longer exists, absent authorisation from Congress.

If the Copyright Office purported to do so, the first court that disagreed would every right to laugh in the same chilling fashion exhibited by Josef Stalin as he enslaved Eastern Europe, and issue a ruling that translated to "I really don't think so, bud."

Please tell [commentator] I said so, and convey my best wishes for his further study of our legal system.

-- 
Cheers,                                      "Reality is not optional."
Rick Moen                                             -- Thomas Sowell
rick@linuxmafia.com

[1] Later, it occurred to me that the Copyright Office could alternatively be referring, by its phrase "software which [sic] has been publicly distributed with an explicit disclaimer of copyright protection by the copyright owner", to software created under the pre-Berne copyright regime prior to March 1, 1989.]

It is worth noting that the 37 CFR 201 regulations were, however, the Library of Congress's measures to implement an actual act of Congress, the Computer Software Rental Amendments Act of 1990, title VIII of the Judicial Improvements Act of 1990, Public Law No. 101-650, 104 Stat 5089.

Within that statute, Title VIII, section 805 provides:

(a) IN GENERAL. -- The Register of Copyrights is authorized, upon receipt of any document designated as pertaining to computer shareware and the fee prescribed by section 708 of title 17, United States Code, to record the document and return it with a certificate of recordation.

(b) MAINTENANCE OF RECORDS; PUBLICATION OF INFORMATION. -- The Register of Copyrights is authorized to maintain current, separate records relating to the recordation of documents under subsection (a), and to compile and publish at periodic intervals information relating to such recordations. Such publications shall be offered for sale to the public at prices based on the cost of reproduction and distribution.

(c) DEPOSIT OF COPIES IN LIBRARY OF CONGRESS. -- In the case of public domain computer software, at the election of the person recording a document under subsection (a), 2 complete copies of the best edition (as defined in section 101 of title 17, United States Code ) of the computer software as embodied in machine-readable form may be deposited for the benefit of the Machine-Readable Collections Reading Room of the Library of Congress.

(d) REGULATIONS. -- The Register of Copyrights is authorized to establish regulations not inconsistent with law for the administration of the functions of the Register under this section. All regulations established by the Register are subject to the approval of the Librarian of Congress.

However, this begs the question of whether the statute refers to newly, deliberately created public domain software under the current Berne copyright regime, or software originating in pre-Berne times (prior to March 1, 1989), when various deeds plus failure to register copyrights in a timely fashion could put works into the public domain -- or was produced directly by the Federal government, or otherwise was public domain ab initio. The latter is the parsimonious explanation, in light of other law on the matter -- unless and until a judge rules otherwise. (I've heard several case decisions cited in which judges refer to the possibility of works becoming public domain through public distribution -- invariably right around the 1989 cutover, e.g., Micro-Star v. Formgen. The fact that this tends to be either, variously, references to works created under the pre-Berne regime or situations where the judges' remarks haven't quite caught up with Federal legal changes, should be obvious to most readers if not to my correspondents.)

Likewise, the references to public domain works within the Berne Convention Implementation Act of 1988 and related congressional committee report, in important copyright case Computer Associates International, Inc. v. Altai, Inc. (1992), and Nimmer on Copyright, Volume 3, Section 13.03 [F], appear to refer to works that arose under the pre-Berne copyright regime.