The Public Domain Trend

Yesterday, two popular blogs, Zen Habits and The Simple Dollar, announced that they are dedicating the entirety of their sites to the public domain.

Leo Babauta, the editor of Zen Habits, said in his post that he is releasing copyright on the content of his site, including his e-book, which is for sale on the site.

He went on to say:

“From now on, there is no need to email me for permission. Use it however you want! Email it, share it, reprint it with or without credit. Change it around, put in a bunch of swear words and attribute them to me. It’s OK.”

At the time of this writing, the Zen Habits post has over 100 comments, most of them very positive. The article also received a significant number of Diggs, but was subsequently buried.

Within hours of the Zen Habits announcement, Trent Hamm, the editor of The Simple Dollar, made a very similar announcement. The two announcements, according to Hamm, were supposed to time out together, perhaps with the support of other bloggers.

Hamm, much like Babauta, said he would appreciate attribution but is no longer going to require it. Comments on Hamm’s blog were more mixed but still largely supportive.

Though there has been a great deal of fanfare with both posts, Babauta was more somber in his, listing some of the potential concerns he had including lost eBook revenues, Google penalties and reputation damage from people using his work in a less-than-desireable manner.

However, these are not the only caveats and causes for concern with these public dedications, for one, there are legal issues which have been largely unaddressed.

Caveats

The biggest possible with these dedications from a legal standpoint is that they are not legally possible in many countries.

Countries with moral rights protections, the right of the artist to be attributed for their work among other elements, often make those rights inalienable, meaning they can not be given away under any circumstance.

Therefore, in these countries attribution rights still rest with the respective authors and these dedications are little more than a promise not to sue if those rights are infringed. That is a promise that can be revoked at any time.

Second, there are some theories that hold that putting a work in the public domain might be seen as a gift and not a legal agreement. If such a gift were found to be an “unenforceable promise”, it could be retracted at a later date.

Third, the posts themselves were not written by attorneys and are very informal in nature. Though Creative Commons has a public domain dedication system, they both chose not to use it. It remains to be seen how these dedications would hold up in court if ever they were challenged.

Finally, the dedications only extend to existing works. The authors reserve the right in the future to reserve some or all rights in newer works. This could be seen as a block on activities such as scraping that are ongoing and automatic.

So while the dedications certainly are intended to forfeit all copyright protections on their work, they do not do so completely because it is impossible to do so.

Copyright law resists the public domain and favors automatic protection. This frustrates many in the field, but it is the nature of the beast.

Concern For the Readers

But while the legal issues of these dedications are interesting, it is other issues that I see as more pressing.

I find it very difficult to worry too much about the future of these two sites. Both are very prominent blogs, both are well established in the search engines and have very loyal followings.

In fact, I suspect they both will initially receive a large bump from the publicity around these announcements and will actually experience a large increase in both sales and traffic from these dedications.

Any negative effects, including those hypothesized by Babauta, will likely take months or years to be felt as they will be cumulative and gradual.

However, my larger fear is, strangely enough, for the readers.

Both authors are correct that, by dedicating their works to the public domain, they will reach the largest audience possible. However, what is not discussed is how it fractures that audience, dividing up among different author names and different sites.

Readers and viewers are best served, for the most part, by knowing who wrote an article or created a work. This is not just so that they can support the original author and ensure that their money attention goes to the correct source, but so that they can turn to the original author for updates, further news and newer works.

This is especially dangerous when you are giving advice that might need to be updated or otherwise altered. Plagiarists may not pick up these changes and revisions, but if the visitor is directed to the original site and follows the author there, they can receive such changes.

In a strange way I feel a kindred spirit with these sites. Like them, I feel a strong passion for the topic I write on and want as many people as possible to read my work. Like them, I don’t really care if they read the work on Plagiarism Today or some other site. That is why I use a Creative Commons License on all of my work.

However, readers are not served by authors permitting plagiarism. Doing so allows the public to be duped by liars who artificially inflate their reputation, to receive outdated information that is often outright incorrect, to be buried by spam (spammers can now take the content freely without fear of reprisal) and even be defrauded into paying for something that is freely available.

Though I don’t doubt that these dedications were selfless acts designed to to help the public, the end result could easily be anything but a positive benefit on the Internet at large.

Personally, if I wanted to donate all of those rights to the public, and I have donated most of them, I would have done it through a Creative Commons Attribution License. Anyone could have used the work for any purpose, the only “payment” would have been a brief line of attribution.

That does not seem to be an unreasonable request and it is one that serves both the author and the reader.

One Other Quibble

Though my concern for the reader and the public at large is my greatest concern, I also have to express some concern at the citation of both Professor Lawrence Lessig and Richard Stallman as inspirations for the move.

Lessig was never and has never been in blindly putting works into the public domain. He created Creative Commons as a means to promote sharing specifically without dedicating works to the public domain. Though they offer a public domain dedication system, it is secondary to their traditional licenses, which are designed to serve as a “middle ground” between full copyright and public domain.

Stallman, on the other hand, leveraged copyright law to help create the GPL, which places several restrictions on use of GPL software, all of which are designed to ensure that the code remains open. Public domain licensing would actually render the GPL useless and hinder much of the open source movement.

In short, without copyright law, both the GPL and CC would collapse instantly. That is not what either of them wanted.

Though neither post called for the abolition of copyright nor condemned other bloggers for taking a different route. This association is likely to cause further confusion and contribute to the misunderstandings about the views of these celebrities. That only serves to hinder the copyright debate.

Conclusions

I have no reason to doubt the sincerity of these two bloggers. I have every reason to believe that they are making a sacrifice for what they perceive to be the public good.

As I said above, I share a kindred spirit with them in that I want to help as many people as possible and don’t particularly care how well it serves me. Yes, this is my livelihood, but it is my passion first.

However, in the end, I feel that this sacrifice is both unnecessary and may, in the end, be harmful to the very people it is intended to help.

Simply put, there are a lot of bad people out there and they don’t just defraud or steal from the people they plagiarize, they also take from those who read the works they take.

Though there is a lot of talk these days about the corporate greed that centers around copyright and the way it is abused, it is important to remember that there are ways copyright actually protects the public.

The same as trademark protection helps consumers be sure they received a genuine product, copyright protection helps them ensure they have the genuine author and are getting the best experience possible.

Information wants to be free, I don’t doubt that and I don’t try to fight that with my own writing. But there is a fine line between being free and living in chaos.

I fear that too much of a slide toward the public domain could slide across the line into the latter.

Hat Tip: Thanks to Aaron Stroud for pointing these stories out to me.

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