@@ -352,68 +352,68 @@ with others, making modifications, or redistributing those modified
versions.\footnote{There could still exist legal systems, like our modern
patent system, which could restrict the software in other ways, as well as
technical measures, such as binary-only distribution, that impeded such activity.}
Software in the real world is copyrighted by default and is
automatically covered by that legal system. However, it is possible
to move software out of the domain of the copyright system. A
copyright holder can often \defn{disclaim} their
copyright. If copyright is disclaimed, the software is not governed
by copyright law. Software not governed by copyright is in the
``public domain.''
\subsection{Public Domain Software}
% FIXME: this section needs more improvements to make it clear that public
% domain dedication is difficult, if not impossible.
% Karen suggests that talking about USA government software being public
% domain might make sense here.
Theoretically, an author can create public domain software by disclaiming all
copyright interest on the work. In the USA and other countries that have
signed the Berne convention on copyright, software is copyrighted
automatically by the author when she ``fixes the software into a tangible
medium.'' In the software world, this usually means typing the source code
of the software into a file.
Imagine if an author can truly disclaim that default control given to her by the
copyright laws. Once this is done, the software is in the public domain
--- it is no longer covered by copyright. Since it is copyright law that
allows for various controls on software (i.e., prohibition of copying,
modification, and redistribution), removing the software from the
copyright system and placing it into the public domain does yield Free
Software.
Imagine if authors could truly disclaim those default control of copyright
law. If so, the software is in the public domain -- no longer covered by
copyright. Since copyright law is the construction allowing for most
restrictions on software (i.e., prohibition of copying, modification, and
redistribution), removing the software from the copyright system usually
yields software freedom for its users.
Carefully note that software in the public domain is \emph{not} licensed
in any way. It is nonsensical to say software is ``licensed for the
public domain,'' or any phrase that implies the copyright holder gave
expressed permission to take actions governed by copyright law.
By contrast, what the copyright holder has done is renounce her copyright
controls on the work. The law gave her controls over the work, and she
has chosen to waive those controls. Software in the public domain is
absent copyright and absent a license. The software freedoms discussed in
By contrast, the copyright holders instead renounced copyright controls on
the work. The law gave the copyright holder exclusive controls over the
work, and they chose to waive those controls. Software in the public domain
is absent copyright and absent a license. The software freedoms discussed in
Section~\ref{Free Software Definition} are all granted because there is no
legal system in play to take them away.
\subsection{Why Copyright Free Software?}
If simply disclaiming copyright on software yields Free Software, then it
stands to reason that putting software into the public domain is the
easiest and most straightforward way to produce Free Software. Indeed,
some major Free Software projects have chosen this method for making their
software Free. However, most of the Free Software in existence \emph{is}
copyrighted. In most cases (particularly in those of FSF and the GNU
Project), this was done due to very careful planning.
Software released into the public domain does grant freedom to those users
who receive the standard versions on which the original author disclaimed
copyright. However, since the work is not copyrighted, any nontrivial
modification made to the work is fully copyrightable.
Free Software released into the public domain initially is Free, and
perhaps some who modify the software choose to place their work into the
public domain as well. However, over time, some entities will choose to
proprietarize their modified versions. The public domain body of software
feeds the proprietary software. The public commons disappears, because
fewer and fewer entities have an incentive to contribute back to the
commons. They know that any of their competitors can proprietarize their
enhancements. Over time, almost no interesting work is left in the public
domain, because nearly all new work is done by proprietarization.