[GRASS5] Re: [Fwd: whinging about GRASS again]

[Mark P. Line]

Jack Varga said:
> Let me preface this with my understanding.  Correct me please (nicely)
> if I'm wrong.  A binary application can have in its EULA that the
> application can be freely distributed, without royalty, indefinitely.
> Yet it can be available without source code, (as many applications are),
> or a clause that says it is illegal to reverse engineer (for whatever
> that's worth ;-).  If the source code is NOT ALSO freely available, does
> that mean that the application itself is not in the public domain?
> Surely it does not.

[I AM NOT A LAWYER. THIS IS NOT LEGAL ADVICE.]

The fact that something is available for free does not mean that it is in
the public domain. Public domain has to do with property rights, not with
purchase price.

If there's a license agreement of any kind (which is where a
no-reverse-engineering clause would be found, for example), then by
definition it can't be in the public domain.

A modern work is only in the public domain if the entity that currently
owns the copyright to it places it in the public domain. After that
happens, the entity is then the work's *former* copyright owner because it
has relinguished copyright protection to the work by placing it in the
public domain. This is what CERL was trying to do with its GRASS releases.

Interesting historical aside:
Legally, CERL didn't actually succeed perfectly in this with every release
because not everybody understood that you shouldn't retain copyright
boilerplate on works you're trying to release into the public domain. If
there were ever any litigation over it, the trier of fact might have to
determine which statement took precedence. I would expect an argument to
succeed which showed that the copyright statements were accidentally
introduced or left standing in the source image of a work that was
explicitly and obviously placed into the public domain. Hence, a
reasonable person could be expected to rely on the public domain statement
and to ignore, or even fail to perceive, the embedded copyright
statements. So the copyright statements would ultimately be void by some
form of estoppel.


> If so, what is the OSI's definition of "public domain"?

OSI's definition of "public domain" is not applicable. There may be
differences at case law from state to state in the US, but the term is
defined in intellectual property law and would not be redefined or even
refined by anybody but an appellate justice or state or federal
legislative body.

[IANAL. TINLA]


-- Mark

Mark P. Line
Polymathix
San Antonio, TX