Public Domain

Summary: The commendably generous act of purporting to place a copyright-covered work into the public domain before the expiration of its copyright term has a number of problems. (Note that, for a property to truly become public domain, its ownership title must cease to exist. Therefore, it is not sufficient for the owner of record to declare "I wish to no longer be regarded as the owner of this property.") Major points:

[Summary ends.]

[1] Note for itinerant Yanks: In Commonwealth English, the noun form is spelled "licence". The verb form is spelled "license".)

[RM note: 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.

Lawrence E. Rosen, quoted below, was at the time OSI General Counsel, and is a noted authority on legal issues relating to open source software.]

From: "Lawrence E. Rosen" <>
To: Rick Moen <>,
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 (
Sent: Friday, March 14, 2003 10:10 AM
Subject: Re: Please add "Public Domain" to "license" list

Quoting David A. Wheeler (

> Hello — I'd like to ask OSI to add "Public Domain" to the open source
> software license list at:

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 U.S.C. 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/herself 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?"

[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) 20XX 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, divorcing spouses, creditors, etc.

From rick Mon Jan 6 21:52:29 2003
Date: Mon, 6 Jan 2003 21:52:29 -0800
Subject: Re: [vox] expectation of privacy on an open mailing list?

Quoting Richard S. Crawford (

> 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?"

[RM note: Again, upon reflection, that ploy to evade liability might not work, as liability tends to rest more on deeds and relationship to property, than on ownership of property. However, it might sever, at minimum, responsibilities that were inherent in the ownership title, such as various implied warranties.]

From rick Mon Jan 6 23:53:40 2003
Date: Mon, 6 Jan 2003 23:53:40 -0800
Subject: Re: [vox] expectation of privacy on an open mailing list?

Quoting Richard S. Crawford (

> 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 a 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 Jan. 1, 1978 (pursuant to section 102 of the Copyright Act of 1976), 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 20XX". The phrase "All Rights Reserved", last I heard, is a legal fossil that no longer means anything except in Nicaragua — 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?"

[RM note: According to Wikipedia's article on the phrase "All Rights Reserved", its last use-case vanished in 2000 when Nicaragua, final signatory to the Buenos Aires Convention of 1910 that hadn't yet ratified the Berne Convention, did so.]

Date: Mon, 29 Dec 2003 23:50:29 +0000
From: Peter Fairbrother <>
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 [licence] 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 that says 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 its name, if I don't get sober and remember it first. [RM note: Peter is perhaps thinking of the equity law principle of promissory estoppel, a judicial means of regulating the effect of contract, where the parties' actions in reliance on their belief in the contract's validity leads the court to enforce its terms, even though the contract turns out to be technically invalid for failure of some required contract element, usually consideration.]

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.

Copyright is granted by statute, and statutory rights cannot be abandoned. [Maybe. Usually.] They can't just disappear.

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 copyrights 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 licensee 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 is not the same as "open-source"). E.g., crypto software might be open-source (so people can criticize it and certify binaries [RM note: Peter actually means "viewable source", here]), but be completely proprietary.


Date: Wed, 18 Feb 2004 14:10:39 -0500
From: John Cowan <>
To: OSI license discussion <>
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 Zero-Clause BSD, ISC, MIT, MIT No Attribution, or BSD 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 note: OSI General Counsel Lawrence Rosen explained this matter further in

I should also mention that Mr. Cowan didn't use the term "Zero-Clause BSD"(or "0BSD", a SPDX short identifier), in the above-quoted mailing list posting, but rather one of 0BSD's long-form names, "BSD Zero-Clause License". (The licence has several long-form name variants: Toybox License, Zero-Clause BSD License — now the preferred long-form name, and Free Public License 1.0.0.) I've taken the liberty of updating Mr. Cowan's terminology for clarity's sake.

Regrettably, there is also a quite different license with a similar name but as far as I can see no real-world adoption, attorney Kyle M. Mitchell's commercial-usage-encumbering "License Zero Public License", that is in no way the same, and should be IMO avoided if one is seeking classic permissive licensing with the minimum possible legal hassle.]

From rick Fri Sep 24 16:07:10 2004
Date: Fri, 24 Sep 2004 16:07:10 -0700
Subject: Re: For Approval: Allegro giftware license

Quoting Elias Pschernig (

> 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) 20XX 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/her 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 <>
Subject: Creative Commons and public domain declarations

News about impending changes to the CC "public domain declaration" page,

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 <>
To: Lawrence Lessig <>
Date: Fri, 24 Sep 2004 16:34:45 -0700
Subject: Query: Should Creative Commons encourage "public domain declarations"?

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 note: snip copy of post to about lingering questions concerning the legal effect of public domain declarations, resulting from copyright law changes to implement the Berne Convention.]

From: Lawrence Lessig <>
To: Rick Moen <>
Date: Sun, 26 Sep 2004 19:37:19 -0700
Subject: Re: Query: Should Creative Commons encourage "public domain declarations"?

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 <>
To: Lawrence Lessig <>
Date: Sun, 26 Sep 2004 22:50:01 -0700
Subject: Re: Query: Should Creative Commons encourage "public domain declarations"?

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 <>
To: Rick Moen <>
Cc: Glenn Brown <>
Date: Fri, 1 Oct 2004 17:38:35 -0400
Subject: Re: Query: Should Creative Commons encourage "public domain declarations"?

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

[RM update: Creative Commons has started a "Commons Deed" aka "CC0" aka "CC0 Waiver" aka "CC0 1.0 Universal" program (1, 2, 3), by which a copyright owner asserts that he/she aspires to abandon his/her copyright title and leave nothing for heirs, spouses, spouses, successors, or creditors, with the explicit aim of making the work available to others without restriction.

This superseded an earlier, explicitly USA-only effort, called "Public Domain Dedication and Certification".

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, inheritance laws, invocation by heirs of copyright termination statutes, etc.

Creative Commons also clarifies that CC0 does not put covered works into the public domain, but rather, to the extent possible in grantor's jurisdiction, disclaims all applicable copyright rights. In particular, Creative Commons details two categories of copyright rights that, at minimum, cannot be made to cease to exist, and acknowledges that there may, in particular cases, be others.

On the bright side, CC0 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 raises the question: Why not just use such a licence (1, 2, 3, 4) in the first place?]

Date: Tue, 31 Jul 2007 09:02:05 +0100
From: [correspondent's mailbox redacted at his request; i.e., he found the record of this conversation embarrassing and asked that all identifying information be removed from it]
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.
> 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."

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

[commentator's name]

Date: Tue, 31 Jul 2007 02:45:50 -0700
From: Rick Moen <>
To: [correspondent's mailbox redacted]
Subject: Re: Fwd: evaluation of needed gnome integration?

[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 U.S.C. 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 U.S.C.).[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 U.S.C.), 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.


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 U.S.C.). Public domain creative works in the primary, main sense of the term are 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

[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, which was when the Berne Convention Implementation Act of 1988 took effect.

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 raises 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.

Date: Tue, 15 Jul 2008 11:28:03 -0700
From: Rick Moen <>
Subject: Re: ping - stop after x successful replies

Quoting Trent W. Buck:

> #!/bin/sh -ex
> # This code is written by Trent W. Buck <> and
> # placed in the Public Domain. All warranties are disclaimed.

I just wanted to speak up to gently encourage licence wording of this sort (instead), in such situations:

# This work is Copyright 20XX (C) Trent W. Buck <>
# but may be used for any purpose provided there is no warranty whatsoever.[1]

Wishing to contribute to the public domain is always commendable, but (for any truly significant work) the category creates an ambiguous legal situation, in UK and USA, and possibly also in various other Berne Convention jurisdictions. Reasons are discussed here:

"Public Domain" on

(Joey Hess uses a similar two-line licence for parts of ikiwiki that get copied into users' wikis, among other things:
"Redistribution and use in source and compiled forms, with or without modification, are permitted under any circumstances. No warranty.")

[RM update:
[1] On reflection, the term "use", here, is problematically ambiguous, raising serious risk that a judge might rule that the reserved rights intended to be conveyed, such as distribution and creation of derivative works, weren't, as they aren't "use". In passing, I'll note that private use of a lawfully acquired copyrighted work without redistribution requires no licence.

Such pitfalls are why lawyer-crafted licences are verbose: The safe, deterministic way to convey rights is to list them explicitly. This matter gets attention further down this page, as to why Zero-Clause BSD, MIT No Attribution, ISC, or MIT License is probably the shortest terse software licence that's legally safe.]

Date: Tue, 15 Jul 2008 19:56:26 -0700
From: Rick Moen <>
Subject: Re: ping - stop after x successful replies

Quoting Trent W. Buck:

> I realize that, and if I ever create a significant work, I'll license
> it in those jurisdictions while still doing my damnedest to put it in
> the PD.

I guess I respect why you wish that — but, in brief:

Both of those obstacles can be overcome in a two-line licence [RM note: but see caution below] if you disclaim warranty (which seems wise); a single line, otherwise.

Obviously, fussing over all this concerning a short script is a bit silly; a boundary case might be something like a Perl snippet that someone re-uses in a larger work, and then someone else uses that in a larger work.

>Cf. "2007-07-15 On the public domain, licence terms for software, and
>practical legal choices", (Search for "2017-07-15".)

Again, I sympathise with Taylor R. Campbell's goals, there: He wants all copyright problems for some of his public codebases to simply go away, and for his code to belong to nobody. Problem is, wishing for that doesn't make it so, whereas...
"Copyright 2008 (C) Taylor R. Campbell. Do whatever you want with this work."
...would accomplish the substance of what he aims for, without the problems inherent in PD declarations.

Campbell's essay makes some grave factual errors. I could list them, if you want — but would guess you share Campbell's desire to spend time hacking rather than learning about law. (Nothing wrong with that, mind.)

Consider also the Fair License, which is only three lines and OSI-certified as open source — or, better, the Zero-Clause BSD, ISC, or MIT License, which are extremely clear, well-known, and tested, but are about 10, 13, and 20 lines long, respectively.

[RM note: Please see analysis below about why the Zero-Clause BSD, MIT No Attribution, ISC, and MIT Licenses are probably the shortest legally safe software licences, and why Fair License is riskier. Also, I've updated the above text to add mention of 0BSD, which hadn't yet been written in 2008 when I wrote that e-mail, but would have been first in my list if it had.]

Note about Abandoned-Property and Escheat Laws

It might be objected that abandoned-property and escheat laws have no natural application to intangible property such as copyrights; that the thrust of law to ensure that tangible property finds suitable new owners (rather than remain ownerless) originates in the problems that can be caused by derelict objects for which nobody is accountable. (Note that I do not assert, here or elsewhere, that copyrights are in any general sense the same as tangible property — but merely that they are subject to the same quality within law of having ownership title, which is what the term "property" means. I am aware that ownership is a bundle of rights, and that inherently the exact contents of that bundle inherently must differ between tangible and intangible property, so please don't write to tell me that.)

In any event, it is simply not true that the various laws to ensure continuation of title aren't applied to copyright and other intangible property. They are.

I might point out that stocks, bonds, and bank deposits are every bit as intangible as are copyrights, and you can bet that abandoned-property, escheat, and similar ownership-changing laws apply to those, every single day.

I've heard the objection (from, of course, a computer programmer) that the above characterisation of copyright (as subject to laws regulating abandoned or escheated property) is "only an analogy", i.e., that treating copyright as "property" in any way is somehow unfair because you can't kick it, because it's a strictly synthetic form of "property" created by the legal system, because it arises from and eventually dissipates into nothing at all, and because it can be replicated indefinitely without loss. I can say only: Tell the courts that. Tell Congress that. Tell the legislatures that — because, for thousands of years, law has been made from little but metaphor. Compelling metaphors are exactly what law is made from.

RM comments further: Taylor Campbell's brief essay is worth commenting on further, not to pick on him, but rather to cast further light on this issue. His view is extremely common, understandable, and deeply generous: He believes it should be possible, as a developer of software, to disclaim ownership of work he creates and thereby cause it to pass directly into the public domain. The main problem is that successfully disclaiming ownership of that item of property wouldn't make its ownership title cease to exist, just as an abandoned ship or a "escheated" bank account (one turned over to the state whose owner has been out of contact too long) continues to be ownable property. Specifically:

Campbell: "It is simply absurd for an author to be unable to forswear any and all claims of copyright."

Answer: Correct but not relevant: You can walk away from an ocean vessel or bank account that you own, too, but those things' property of being owned will persist. In fact, it is longtime public policy to ensure that ownerless property promptly finds a new owner.

Specifically for copyright property, most jurisdictions also have provisions protecting the rights of the owner's heirs, divorcing spouses, and creditors, and it's not clear that the owner's disclaiming of ownership would also remove their separate claim to the property. And it's also worth noting that the international Berne Convention for the Protection of Literary and Artistic Works made such ownership title arise automatically at the moment of a covered work's creation, something that was not previously the case.

Campbell: "The simplest status for works lacking copyright claims is release into the public domain."

Answer: That would indeed be simplest if it were clearly and unambiguously possible in a Berne copyright environment (prior to the expiration of copyright term). Since it is not, the simplest status is "accompanied by a one-line statement granting all possible permissions without condition or restriction". Note, however, that this maximal-freedom status leaves the author potentially exposed to warranty claims, so a second line making permission hinge on agreement that there's no warranty seems wise. (However, see discussion below of Zero-Clause BSD, MIT No Attribution, ISC, and MIT Licenses about why they're probably the shortest terse software licences that are legally safe.)

Campbell: "If a court of law will not accept a statement that the software is released into the public domain, there is no reason for it to prefer the acceptance of a statement of licence terms."

Answer: Sorry, but there is a reason — actually, two reasons: Reason 1: successors. The easiest way to see this is through analogy: Let's say X posts a sign on his/her automobile saying "I hereby declare that ownership of this car is abolished, such that it's in the public domain and anyone may use it for any purpose." Y finds the car and drives it away. Meanwhile, X dies. X's heirs assert ownership of the car as part of his/her estate. Y asserts that he/she is blameless for anything that happened to the car, and that X's heirs have no claim on it because it was converted to a condition of ownerlessness. Guess who prevails? It's going to be X's heirs.

Alternatively, X is still alive but in debt, and his/her creditors go after his/her property. Or X gets divorced and the spouse wants the car. Or (if in the USA, and once again talking about copyright instead of cars), X himself/herself exercises his/her statutory 17 U.S.C. 203 right to recapture the copyright title.

Reason 2: warranty disclaimers: If you say "I relinquish all powers over this every aspect of this car, and, by the way, I require that anyone using it agree that I am not offering any warranties on it", then the first half of that declaration prevents the second half from having any force. Passers-by who use the car have no obligation to agree to your lack-of-warranty stipulation, because you've just disclaimed your own power to impose conditions.

All of these problems go away with a permissive two-line licence [RM note: but see caution below] like this:
"Copyright 2008 (C) Taylor R. Campbell. Do whatever you want with this work,
provided you agree that there is no warranty of any kind."

Some have opined that the above is a non-free licence because it covers only use and not redistribution. I (Rick Moen) consider that a nonsensical objection: Frankly, if the phrase "Do whatever you want" doesn't incorporate redistribution, what does? (Within copyright law, usage, copying, redistribution, public display, public performance, and preparation of derivative works are distinct rights, all except usage being reserved rights under copyright, but my point is that the phrase "whatever you want" pretty clearly conveys all rights.) However, the objection usefully highlights the problem with novel, terse licences in general: Both unintended ambiguities and the licences' very unfamiliarity can raise points of doubt and contention.

(Joey Hess's two-line licence, quoted elsewhere on this page, does manage to squeeze in explicit mention of redistribution — but has other problems (an ineffective warranty disclaimer) to which we turn next.)

Thus, please consider well-known licences: The Fair License is only three lines and OSI-certified as open source. However, there are good reasons to think the Zero-Clause BSD, ISC, or MIT License, which are extremely clear, well-known, and tested, but are about 10, 13, and 20 lines long, respectively, are probably the briefest licences that are legally safe:

Like the Fair License, the Zero-Clause BSD, ISC, and MIT Licenses includes warranty disclaimers in all capital letters. However, unlike Fair License's disclaimer, Zero-Clause BSD, MIT No Attribution, ISC, and MIT's disclaimers deem it insufficient to say merely "without warranty of any kind", but go on to enumerate the several types of warranty not granted (both express and implied, including merchantability, fitness for particular purpose, and non-infringement). Also, MIT has a disclaimer of liability for 'claim, damages, or other liability', again, listing several theories of law such liability might arise from and not merely saying 'any'. All of that in capital letters. (ISC License has a similar clause, and Zero-Clause BSD is also excellent, as it uses ISC License's warranty disclaimer.)

Why? Because of legal requirements for disclaimers in (especially) USA law, which heavily restrict warranty disclaimers for reasons of consumer protection. Without that particular form of disclaimer, coders (and downstream reusers of code) may find themselves saddled with unintended warranty obligations.

In general, the Zero-Clause BSD, MIT No Attribution, ISC, and MIT Licenses' explicit listings of rights conveyed and not conveyed, and of obligations specifically disavowed, are safer because they were written with legal tradition in mind, to head off mishaps that might otherwise occur, and that have in fact occurred without that wording. Programmers ignore that legal experience at their peril.

Prof. Dan Bernstein makes arguments similar to Campbell's:

Bernstein (paraphrased): "The Ninth Circuit's case Micro-Star v. FormGen, Inc. established that copyright can be abandoned."

Answer: First of all, so what? One's right to walk away from property doesn't destroy its ownability and in no way eliminates other parties' (heirs, spouses, creditors, others) right to become the next owner. Second, the date of the case was not long after the Berne cutover, so copyright properties that had become public domain through distribution without valid copyright notices would have been still common, and thus still merited the court's attention.

Bernstein (paraphrased): "The Ninth Circuit's Model Civil Jury Instructions, 2007 edition Section 17.19, and 2001 edition Section 20.19, establish legally defensible standards for proving that one has abandoned a copyright."

Answer: Again, so what? The Court's instructions merely guide juries in deciding whether a one-time owner of a copyright has validly walked away from his/her title, thus enabling a plaintiff in a subsequent copyright-violation lawsuit to escape civil liability. The Court's instruction does not cause title to cease to exist, nor say anything about such cessation (which would be the essence of that property becoming public domain). Nor do the Court's jury guidelines in any way suggest that creditors, divorcing spouses, heirs, etc., cannot successfully become the next owner. By a functional test, such property is thus not public domain at all, merely abandoned by its recent owner, such that he/she is "estopped" from prevailing against infringers.

Bernstein (closely paraphrased): "Attorney Lawrence Rosen's article 'Why the Public Domain Isn't a License', in arguing that 'Intellectual property enters the public domain only when it grows old' and that 'There is no mechanism in the law by which an owner of software can simply elect to place it in the public domain' is proven wrong by the Ninth Circuit's Micro-Start judgement that 'It is well settled that rights gained under the Copyright Act may be abandoned', and by the Model Civil Jury Instructions."

Answer: Unfortunately, Prof. Bernstein has made the common error of confusing abandonment of property with its ceasing to have ownership title: For a copyright (or any other intangible property) to become public domain, by definition its ownership title (its legal characteristic of being owned) would have to cease to exist.

Bernstein: "Rosen claims that a clear written dedication of a copyrighted work to the public domain doesn't actually abandon copyright."

Answer: Incorrect. Rosen asserts (correctly) that abandoning property does not make it public domain, e.g., where he says "there is nothing that permits the dumping of intellectual property into the public domain."

Bernstein (closely paraphrased): "Rosen asserts that 'Public domain is evil' because he makes helping people create, and comply with, complicated copying conditions."

Answer: Rosen doesn't assert or imply that the public domain is evil in any way.

Bernstein (closely paraphrased): "Rosen asserts that 'Public domain is nonexistent.'"

Answer: Mr. Rosen, being an attorney extremely well versed in copyright law, is quite well aware of PD arising from pre-Berne works, acts of authorship by US Federal agencies and departments acting directly (17 U.S.C. § 105), and so on, not to mention from expiration of copyright term. In fact, the third paragraph of Rosen's essay begins "There is such a thing as the public domain."

Since around the year 2000, a small subculture of open source has arisen of software claiming to achieve public domain status by fiat, frankly ignoring the reasons this doesn't work reliably and provably doesn't work at all in particular jurisdictions. This sadly places into some significant doubts the legal rights to redistribute and to modify and redistribute some fairly significant software, such as SQLite, most of Prof. Daniel J. Bernstein's software suites, and the Epoch init system.

There are also two semi-popular licences aspiring to be "public domain equivalent licences" that I will address first. Both are legally defective attempts to game the international copyright regime, and I wish to warn specifically against them:

Both licences (Unlicense and WTFPL) are essentially protests against, and parodies of, and jokes about, the worldwide copyright regime and the convoluted legal language required for software to deal with it. The point, though, is the word required: Using joke licences for your software is about as wise as using joke mechanics to repair your car. The failure mode of software licensing may be that someone in the future, relying on the supposed licence, will lose an expensive lawsuit.

As an aside, there's a common but false belief in the "public domain equivalent" subculture that, if a licence doesn't require recipients to retain the "Copyright (C) 20XX Owner Name" statement that it may be lawfully stripped. Sorry, no: Even if the licence doesn't require retaining copyright notices, basic copyright law does. In the USA, for example, copyright-notice retention is required by 17 U.S.C. § 1202(b).