Subject: RE: Please add "Public Domain" to "license" list
From: "Lawrence E. Rosen" <lrosen@rosenlaw.com>
Date: Sun, 16 Mar 2003 16:03:28 -0800

Here's something I found in a note written by Terry Carroll
(http://www.tjc.com/copyright/FAQ/CFAQ02.html).  

"There is a common belief that if someone infringes a copyright, and
the copyright owner does not sue or otherwise put a stop to the
infringement, the copyright is lost and the work goes into the public
domain. There is some pre-1988 law on this (e.g., Stuff v. E.C. 
Publications, 432 F.2d 143 (2d Cir., 1965) and Transgo v. Ajac
Transmission Parts, 768 F.2d 1001 (9th Cir. 1985)), but it seems to
derive mostly from the fact that the copyright holder had acquiesced
in the publication of the work without notice back when notice was a
requirement. It was the publication without notice, and not the lack
of enforcement, that actually worked to put the work in the public
domain. This is forfeiture of copyright, not abandonment. Because
the notice requirement is now gone from copyright law, these cases
don't have much weight today."

So I don't think the Stuff case helps your argument much.  Perhaps
you're right that a court might find abandonment of copyright, but I'm
not convinced it's tested yet.

/Larry Rosen

> -----Original Message-----
> From: Greg Pomerantz [mailto:gmp@alumni.brown.edu] 
> Sent: Sunday, March 16, 2003 3:08 PM
> To: Rick Moen
> Cc: license-discuss@opensource.org
> Subject: Re: Please add "Public Domain" to "license" list 
> 
> 
> > This is not _nearly_ strong enough.  It would be more fair to state 
> > that there are serious doubts whether it's possible to 
> simply declare 
> > something to be in the public domain, and that such a 
> declaration may 
> > have either no legal effect, or an effect different from what you 
> > intend.  Further, that effect may differ by jurisdiction.
> 
> Rick, I think in the U.S. there is no doubt that it is 
> possible for an author to dedicate a work to the public 
> domain. Abandonment is a recognized defense against copyright 
> infringement, and is ordinarily thought to occur when the 
> author (i) intends to surrender rights to the work, and (ii) 
> performs some overt act evidencing such intent (Nimmer on 
> Copyright, 13.06). If an author published a work for free to 
> the entire world with an express notice of her intent to 
> dedicate the work to the public domain, I can't imagine any 
> judge would fail to find abandonment (and I'm not aware of 
> any case to the contrary). It is also generally held that 
> abandonment of a work can occur if "the copyright owner 
> authorized or acquiesced in the wide circulation of the 
> copies without notice" (Stuff v. E.C. Publications, 342 f.2d 
> 143) (this case is relevant to the example you gave).
> 
> Greg (tinla)
> 
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> 

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