[Foundation-l] Stroop report

[Ray Saintonge]

Birgitte SB wrote:
> The WMF licensing policy puts the burden on being able
> to declare a work to be "free content" or else use an
> EDP.  Unless something is *really* old you have to
> know who held the copyright in order to show that
> their rights have expired.  Not being able to
> determine the copyright holder, or even being able to
> prove the copyright holder is 100% unknown and always
> was, does not release the work into the Public Domain.
>  Orphaned works are still copyrighted in the US. 
> There is no provision for a work to be declared "free
> content" unless it a) released under a free license or
> b) in the Public Domain.  *Many* works do not fit
> either of those criteria and still have 0% chance of
> anyone being awarded damages for copyright
> infringement. 
>
> But we are limited by the WMF licensing resolustion,
> which has a very high standard for "free content" and
> what is allowed to be hosted as such on WMF servers. I
> don't particularly like the licensing resolution for a
> number of reasons, but we can't just ignore that it
> exists and decide use a different standard that is
> more appealing.
When talking about these things it's always important to distinguish 
between actual copyright law and WMF policy.  Mixing them together in a 
blender is not an effective way to achieve clarity.

It is clear that WMF policy is far stricter than the law.  Of course 
there is no mechanism for orphaned works to be released under a free 
licence, so ther is no argument about that aspect.  The real argument is 
around the definition of when a work goes into the public domain.  There 
is a difference between an owner that is not determinable and one that 
does not exist.  This is the difference between a true 0% chance and a 
0.0000000001 % chance.

An easy example of a true 0% chance could be a corporate publication 
from a company that has ceased to exist through bankruptcy.  Its 
corparate publications in the absence of a transfer in the bankruptcy 
action have become nullities, and that puts them in the public domain.

We do ourselves a disservice when we take the doctrinnaire position that 
there is no provision that would allow us to declare a work free. There 
are limitations on prosecutions, and there remains the common law 
doctrine of "laches", perhaps other avenues as well.  Our mission is not 
simply a matter of accepting freeness as a concept in stagnation.  It 
also involves the verb "free", and making things free.  It requires 
exercising a little imagination to find ways of doing that.

Ec