As a Stack Overflow contributor, I want my answers to be CC-BY-SA, but the code therein should be considered public domain (or as close as is reasonable). My intent when answering someone’s question on Stack Overflow is that the answer should help others; I would be offended if some other website...
@Deduplicator That’s true, but that then creates a problem for everyone because they’ll have to go check peoples’ profile pages before using anything from an answer in their code. It might also change the way people vote on answers (maybe the best answer has a more restrictive license and so doesn’t get upvoted or accepted).
I have one request: if you’re stating that something is PD, please also include something like this: In countries where the Public Domain status of the work may not be valid, I hereby grant a copyright licence to the general public to deal in the work without restriction and permission to sublicence derivates under the terms of any (OSI approved) Open Source licence. That’s because it doesn’t cross country boundaries. (For this wording, we assume OSI doesn’t ever unapprove licences unless they should never have been approved in the first place.)
@mirabilos I have yet to see a cogent argument that a public domain declaration is not sufficient. No court is going to apply a restrictive license (which one, anyway?) to a work declared by its author to be public domain (the intent of the author is clear), nor is a court going to support copyright action by an author on the basis of an implied license in such a case (again, the author’s original intent is clear and such action would be a violation of natural justice). There might be issues with moral rights, but you can’t give them away by license either.
@alastair two things: First, the author – in some countries, one cannot relinquish all rights, and/or there are good reasons not to do it (such as liability; some can be disclaimed, but if you don’t have a disclaimer you’re liable for more by default).
@alastair Second, the recipient – the Berne Convention harmonises copyright internationally by making copyright protection (and thus licences, which build upon that very protection) work across country boundaries. It does not, however, do that for Public Domain works. For those, only the PD-after-copyright-protection-ended part of the copyright law of the country of the recipient applies. (In fact, someone working for the USA government could sue someone in Europe over using his PD (in USA) code, someone on the OSI mailing lists remarked, though nobody would probably do so.)
@alastair To mop it all up though – if you want to add code to a work of your own which you then wish to licence to someone else (no matter whether commercial, copyleft or permissive) you need a licence to do that for the code from others you add. PD is not a licence but the absence of requiring one, and, as I pointed out, does not work in many cases. (Not suing is not “having a licence”, only “not enforcing the rights I reserve by not giving a licence”, meaning taking PD-in-USA code then redistributing under, say, GPL, is a crime in other countries.)
@mirabilos None of those arguments hold water IMO. The first relates to moral rights, which would only be a problem if e.g. you used software to facilitate prostitution or WMD or something equally controversial and credited the author.
@mirabilos The second is only kind-of true (not least because not every country is a Berne Convention signatory in any case), but if you declare something public domain, no foreign court is going to support a claim that you didn’t mean it in their jurisdiction. Why would they? The US govt case is interesting though, because it hinges on the fact that US govt works are not eligible for protection under US domestic copyright law; it doesn’t actually involve any kind of declaration stating that the work is public domain.
“if you declare something public domain, no foreign court is going to support a claim that you didn’t mean it in their jurisdiction” doesn’t matter because declaring something PD does not exist in my jurisdiction. And the absence of a licence clearly makes a work proprietary and most uses of it forbidden. That’s a by-default ever since the Berne Convention (it was not so in the USA before 1989/1990).
@mirabilos Nonsense. There may be no mention of an explicit mechanism for declaring something to be public domain in the law, but that does not mean that a declaration of that kind is not a clear declaration of the author’s intent. If you went to court, having declared XYZ to be in the public domain, seeking licensing fees for its use, you would lose, in any court, anywhere, because your original intent was clear and it would be unjust to allow your demand for fees. The only time you might not lose is if you have moral rights that are being infringed, and licensing doesn’t help with that.
@mirabilos If you know of a case where a court has supported a plaintiff who has declared work to be in the public domain and then successfully sued for infringement, cite it. Otherwise, I say you (and others like you) are being needlessly legalistic.
No, that’s completely irrelevant. If I release a work foo, which contains (relevant) parts of bar, and I wish to put a licence on foo, the licence I get for bar has to allow me that, for my own licence on foo to be valid. This is completely separate from whether the author of bar would sue me over it.
@mirabilos If the author of bar has declared it public domain, I say no court is ever going to object to your license, and the court will hold your license valid. If you know of a case where a court has done otherwise, cite it. Otherwise, I say again: you are being needlessly legalistic.
In front of a court (and on High Sea) you’re basically in God’s hand. I would not trust your overly optimistic interpretation, especially when I have a lawperson’s different advice (not legal advice, but still advice from a lawperson). IANAL so I don’t have the means to search for actual court cases myself, but the absence of such does not even prove your point (negative proof fallacy).
I do have advice though that, if something is lawfully PD in the USA, a US-American citizen can lawfully create a derivative work of it and licence the whole. This is extremely USA-specific though, and I doubt you’d want to make most non-USA-citizens go through an intermediate (plus, Germans couldn’t even post here any more then).
I think the "lawpersons" who have talked about this have hugely overstated their case. The fact of the matter is that a lot of software has been declared by its author(s) to be public domain over the past thirty or so years, and if there had been a single court case where a court had struck that down in favour of license fees being paid to the author, all of the "advice" on this issue would cite that case.
It's also notable that, certainly in Common Law jurisdictions, the courts will interpret vague drafting on the part of the plaintiff in a way that is favourable to the defendant. So if you release XYZ with a notice saying it’s in the public domain, and accepting for a moment that the notion of the public domain is legally vague, the court is going to interpret it in the defendant’s favour — i.e. you will lose if you sue for infringement.
