Re: Is an UNCOPYRIGHTABLE License (or keyword) needed? #poll


Aaron Williamson
 

Hi Michael,

On Wed, Mar 11, 2020 at 11:33 AM <michael.kaelbling@...> wrote:
The U.S. Copyright Office considers some works uncopyrightable "because they contain an insufficient amount of authorship", e.g. "words and short phrases ... titles ... names", "mere listing of ... contents, or a simple set of directions...", and  blank forms  (https://www.copyright.gov/circs/circ33.pdf). 

SPDX-License-Identifier: NONE and SPDX-CopyrightText: NONE state that there is no license or copyright statement, but do not say that none is needed or possible.

One concern with an "UNCOPYRIGHTABLE" identifier is that its existence could give rise to inappropriate application by authors. It's often quite difficult to conclusively determine whether a questionable work is copyrightable under U.S. law. So by making the identifier available, you may create a risk of false negatives, i.e. that it would be inappropriately applied to things that are in fact subject to copyright.

As you say, there is already a risk of false positives, insofar as people might apply a copyright license to something that is not subject to copyright. But in the case of false positives, the failure condition is that the license was not needed; either way, the consumer is ok. In the case of false negatives, where the "UNCOPYRIGHTABLE" assertion was used in place of a license by the author of a copyrightable work, the failure condition is arguably that there is no license. The "UNCOPYRIGHTABLE" assertion doesn't meet the criteria for abandonment of copyright under US law, so at best you'd be resorting to an estoppel theory based on the author's mistaken characterization. I admit the risk is not massive, but it's worth considering.

A related concern is that non-US, non-copyright protections (like a sui generis database right) may apply, which a FOSS license might be sufficient to convey but an "UNCOPYRIGHTABLE" assertion would not.

All that said, I agree that your use case -- tagging materials to be ignored by a scanner -- is a valid one. The only question is whether using "UNCOPYRIGHTABLE" would create more trouble than it's worth for the reasons given above.

Best,
Aaron

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