JANUARY 14, 2009 by STEPHAN KINSELLA
I’ve pointed out to such people innumerable times, to little avail, that copyright is a noun, not a verb–that you don’t “copyright” something–you have a copyright in your original works of authorship as soon as you write them, automatically, courtesy of federal law. No copyright notice is required. No copyright registration is required. You have the right, whether you like it or not.
Well, then, why don’t you just “make it public domain,” some then, a bit unreflectively, retort. The problem is, there is no clear and good way to do this.If you use a Creative Commons license, you are actually employing the copyright the state grants you–you are putting conditions or limitations on what others may do with your works. Even if you use the least restrictive type, “Attribution,” you are requiring others to do something to avoid being liable for copyright infringement.
Now, some have tried to find ways to let you abandon your copyright, or “dedicate” it to “the public.” Creative Commons has a proposed “Public Domain Dedication“, but: (a) it doesn’t seem easy, at least for the typical user; and (b) there appear to be doubts as to whether it would work–and until it’s clear that it does, it’s worse than a CC license, since publishers would be afraid to rely on it. It is possible that a type of estoppel would apply, preventing the “dedicator” from complaining if someone else relied on his “dedication” to his detriment; but there is “a quirk of U.S. copyright law which grants the author of a work the right to cancel ‘the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright” thirty-five years later, unless the work was originally a work for hire.’” So sayethWikipedia; and it outlines other deficiencies of the “public domain dedication.”
Creative Commons seems to recognize the potential problems with their attempt to set up a “public domain dedication”– first, they say, “Please note that the Public Domain Dedication may not be valid outside of the United States.” Well, that’s no good. We do live in a global, um, world. Last time I checked, the Internet was available even outside America! Second, I had to google their site to even find it–it’s not even listed in theirLicenses page, or in their FAQ. They provide this method with disclaimers and no guarantees, and they bury it on their site. Hmm, tells you something.
So, what’s a libertarian to do? I tend to think the CC 3.0 Attribution license is the most libertarian–it only requires you to say who wrote it–but most people would do this anyway, so that’s not a huge imposition. The “non-commercial” ones prevent people from using it “for profit”–this is still a use of copyright to force people not to publish. And the “Attribution Share Alike” seeks to use one’s copyright threat to force others to use this license too.
(For example, suppose you have a deal with a publisher, and you want to use a CC share-alike licensed work in your book. But the publisher you are using refuses to grant a “share alike” license. So now, you can’t use the CC licensed work. I.e., if you publish your paper with a CC attribution license, the other guy can use it in his book. But if you do a share alike one, he can’t. He’s prevented by your copyright assertion threat.)
The d*mned government imposes this right on us and does not even provide an easy way to opt out of it or get rid of it. Ridiculous.
Update: In my comments to Roderick Long’s post Steal This Journal!, I noted:
Roderick, If I’m not mistaken, “copyleft” is similar to the Creative Commons “share alike” license. Libertarian Papers, however, uses the Creative Commons Attribution 3.0 License. After thinking about this, it seems to me that the “Attribution” license is more libertarian than “Share-Alike” (or copyleft).
Now the new “CCO“, or “No Rights Reserved,” attempt to make one’s work “public domain” seems the most libertarian of all, but its efficacy looks doubtful to me, and it’s still embryonic as far as I can tell.
In response to Charles Johnson’s (Rad Geek) suggestion that Attribution-Share-Alike (a “viral” type of copyright license, a.k.a. “copyleft”) might be preferable or acceptable from a libertarian perspective, I replied:
Rad, I see the argument, but I think the best policy is just to free it up. It’s a bit too paternalistic, rude, untrusting, to force others to do it like you do, to assume they’ll “abuse” their power. And, it might stop the work from being re-published. We want our libertarian ideas spread far and wide. I want an editor of a book considering reprinting one of our pieces to see no obstacles. A “viral share-alike” provision could be. Let ideas be free.
Update: See Doubts Raised About Legal Soundness of GPL2
Update 2: In my subsequent post Let’s Make Copyright Opt-OUT, I argued “why not reform copyright law to at least legalize creative-commons type licenses, including CC0—let us opt out if we want to”. Now, as noted in Mike Masnick’s Techdirt post European Parliament Committee Calls For Creation Without Copyright To Become EU Policy, the the European Parliament’s International Trade Committee has come out in favor of permitting people to opt out of copyright in the creation of new works (Opinion of the International Trade Committee on a Digital Freedom Strategy in EU Foreign Policy). The report:
Calls on the Member States and the Commission to develop IPR policy in order to continue to allow those who wish to create their own content and share it without acquiring IPR to do so;
As Masnick comments:
Yes, you read that correctly: an official document from the important trade committee of the European Parliament is calling for the option to create without copyright being attached.
Of course, the proposal stands no chance of being implemented because EU countries are signatories to the Berne Convention, which requires copyright to be automatic as soon as a work is “fixed,” which means that creation without copyright is not permitted.
As I noted in Let’s Make Copyright Opt-OUT, the Berne Convention also forbids copyright “formalities,” making copyright protection automatic. This means that the US is therefore unable to revise copyright law to make it “opt-in” instead of opt-out, because this would violate international obligations.