Technology Management

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Legal, Ethical and Social Considerations of Creative Commons and the Public Domain

[Table of contents]

Legal

View Creative Commons Legal Code CC0 1.0 Universal

Let's consider some scenarios:

Let's consider some real situations:

How do courts resolve disputes over public-domain status?

The Ninth Circuit Model Civil Jury Instructions, 2007 edition, Section 17.19, states a model for the text that courts give to juries:
17.19 COPYRIGHT - AFFIRMATIVE DEFENSE - ABANDONMENT

The defendant contends that a copyright does not exist in the plaintiff's work because the plaintiff abandoned the copyright. The plaintiff cannot claim ownership of the copyright if it was abandoned. In order to show abandonment, the defendant has the burden of proving each of the following by a preponderance of the evidence:

1. the plaintiff intended to surrender [ownership] rights in the work; and

2. an act by the plaintiff evidencing that intent.

Mere inaction [, or publication without a copyright notice,] does not constitute abandonment of the copyright; however, [this may be a factor] [these may be factors] for you to consider in determining whether the plaintiff has abandoned the copyright.

If you find that the plaintiff has proved [his] [her] [its] claim[s] in accordance with Instruction[s] [insert cross reference to the pertinent instructions on the plaintiff's theory of infringement], your verdict should be for the plaintiff, unless you find that the defendant has proved each of the elements of this affirmative defense, in which event your verdict should be for the defendant (Bernstein, 2012).