Protect commons from patents

Rob Landley has a good idea: software patents shouldn’t apply to public domain software. This is exactly the kind of commons-favoring reform that ought be topmost on the agenda of anyone who cares about a good [digital] future. It will take years for many such reforms to be feasible. This only means it is urgent for commoners of all free/open stripes to begin thinking of themselves collectively as a politically potent self-interested group, not as merely surviving through private opt-outs from increasingly bad regulation and reaction against apparent existential threats.

I’m a huge fan of the public domain and think that among private opt-outs, public domain instruments ought be used much more than they are. Landley makes an interesting case (historical and otherwise, read his full post) for limiting protection from software patents to public domain software rather than any free/open source software, but I disagree — in this reform step, it makes sense to protect developers and users of any free/open source software from patents with regard to that software.

Up to the last paragraph the rest of this post is dedicated to this disagreement (and in another sense of dedicated, to the public domain, as is everything by me), but don’t let that distract from my overall appreciation of Landley’s post — read the whole thing (his blog is also interesting overall, stylistically like early blogs, and it does have posts back to 2002, though I’ve only been following it approximately since the first link in previous paragraph: see link text “disagree”, appropriately enough).

Landley writes:

The reason to say “public domain” instead of “open source” is partly that open source is difficult to legally define

Public domain hasn’t got that problem. It avoids the whole can of worms of what is and isn’t: the code is out there with zero restrictions.

1) Existing law and regulation deals with “open source”, e.g. the U.S. Department of Defense and the Italian government. This is no significant obstacle. On the other hand, “public domain” has another problem: FUD about whether it is “legally possible” to put new works in the public domain and whether various public domain instruments “work”. This FUD needs to be combated, but I think it’ll be more effective to do so in part by getting public domain instruments recognized as free/open instruments by various gatekeepers than by dumping FUD on the same.

The price for freedom from patents should be zero restrictions: if the authors have no control over what people can do with it, why should uninvolved third parties have a say? Ideally the smooth, frictionless legal surface of the public domain should go both ways.

That’s the constitutional argument: freely redistributable, infinitely replicable code serves the stated constitutional purpose of copyrights and patents better than patents do. Releasing your copyrights into the public domain should also prevent patent claims on that code.

2) That’s a fine assertion, but it’s really outside the free/open source (and nearby) consensus on software patents: they should be abolished, i.e., one should not have to give up anything to be protected from them. Changing the focus to strategically demanding freedom from patents for free/open source software (while still agreeing they ought be abolished for all) would mark a huge shift in the imagination of the movement(s). Limiting the scope of protection to only public domain software: how is it imaginable to take that idea beyond an interesting blog post? I wish a huge constituency for public domain software existed, but as of now it is a rounding error.

3) Zero restrictions is a fine ideal (indeed, copyright and patent should be abolished entirely), but whether viewed as a “price” or grant of permissions, releasing work under any free/open license makes very significant grants. Attendant conditions may be annoying, self-defeating, necessary, or something else depending on one’s perspective (I try to view them charitably as prototypes for more effective regulation not based on copyright holder whim, but also think it is worthwhile to try to improve them, and, as above, encourage more use of public domain instruments) but obviously these licenses are adequate to facilitate vibrant commons projects (essentially all well known free/open source software, except for SQLite and djbware, which use public domain dedications), and it is the actual commons that needs to be favored, not some idealized zero friction symmetry between patent and copyright.

The historical reason to say “public domain” instead of “open source license” is possible legal precedent: back when software was unpatentable, it was also uncopyrightable. An awful lot of public domain software used to exist, and when people added copyrights to it, they opened it to patents as well. Software that _isn’t_ copyrighted, historically, also wasn’t patented. If somebody tries to enforce patents against public domain software, we can make a clear distinction and ask a judge to opine.

4) I’m not a lawyer, but I’d bet heavily against us winning. Happy to be wrong.

5) I’ve already mentioned size of the constituency for (2) and quantity of (3) free/open source software relative to only public domain software, but these bear repeating in the form of size of benefit. Protecting all free/open source software from patents would immediately benefit millions of free/open source software developers and users, and solve big problems for free/open source software and standards. There would be essentially no immediate benefit from only protecting public domain software from patents. Long term it would encourage more public domain software. To make that extremely lopsided trade off one has to believe that free/open source licenses are really, really awful relative to the public domain. I can understand that belief emotionally, but don’t think what evidence we have about success of various projects bears the belief out. Rather, the specific conditions (including none) just aren’t all that important so long as a minimum of permissions are granted. Exclusive public domain advocates may hate licenses, but licenses just don’t matter that much!

As the title of this post implies, free/open source software (inclusive of public domain software) is not the only commons threatened by patents that ought be favored through blanket protection from patents. Defining some of these (e.g., for seeds, 3D printing, general purpose robotics, and synthetic biology?) will be harder, in part because there may be no “well understood term in the trade” such as “open source”, but this is a much smaller hurdle (indeed, a sub-sub-task of) than organizing the relevant constituencies and making the case to the public and policymakers that favoring commons is indeed good policy.

5 Responses

  1. Rob Myers says:

    “> Software that _isn’t_ copyrighted, historically, also wasn’t patented.”

    is true because

    “> back when software was unpatentable, it was also uncopyrightable”

    So I really don’t follow that part of the argument. Software could however be a trade secret, it was in the case of UNIX.

    “FUD about whether it is “legally possible” to put new works in the public domain and whether various public domain instruments “work””

    The existence and nature of the public domain varies around the world. CC0 is an effective instrument for tackling this irregularity. That sometimes takes the form of a license… ;-)

  2. Hi Rob, you don’t follow, I want to bet against. ;-) Landley does indirectly cover the trade secret part:

    “You didn’t say human readable public domain source code.” That’s right. Reverse engineering a binary isn’t hard. Legally defining “human readable” might be. And being able to sue people for patents on public domain binaries would suck. Keep it simple: trying to complicate a system to shoehorn people into the specific actions you want them to take just causes more corner cases people can use to game the system. Let’s not go there.

    I think the need for a license fallback in CC0 is mostly to combat FUD, and that public domain instruments without such are and will be effective. As I’ve said many times before, I look forward to the day when someone who has released stuff using a public domain dedication sans license fallback decides to sue users of that stuff on the basis that their own dedication was legally “invalid”.

    But until the new public domain is more explicitly addressed in law (as of course it should be), there would presumably be a definition problem analogous to the one Landley cites for licenses: what public domain instruments should be considered adequate for making software public domain and thus granted immunity from patents? Even worse, there are no bodies dedicated to making such determination…except indirectly, bodies that determine whether instruments are free/open.

  3. […] reforms would favor actually existing commons, and put those on the scholarly and policy agendas. A recent idea directly concerning patents that ought start down that long road, but many pertinent reforms may be indirect, favoring commons […]

  4. […] guide to reform proposals, see patent reform, parts deficient in commons and compare with protect commons from patents. I noticed today that one of the other alternative licensing schemes, License On Transfer, seems to […]

  5. Landley argued further for protecting only public domain from patents at … I will reply eventually.

    In 2000 Raph Levien made a GPL-only grant for his patents, see announcement at and discussion at

    This is tangential (because not a suggestion for public policy) but interesting for having not been copied. Or maybe it has in the only way it could (most patents are not held by individuals). An unsourced statement at says:

    This step was considered by some[who?] to have set a good example, and it has been suggested[by whom?] that it has set a precedent for IBM’s subsequent patent grant, which followed two years later.

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