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Advice for drafting a legal will to release my IP into the public domain
January 7, 2014 6:08 PM   Subscribe

I want to create a legal document declaring in robust legalese that all of my intellectual property (except works specifically noted) shall enter the public domain upon my death and a website to host (or link to p2p copies of) archives of those works. I want the legal documents to make it easy for other people to use or adapt for themselves and ideally for the site to act as a host or tracker for them to post to. I'm seeking legal and technical advice as well as general input in order to make this happen.

This will be my first time drafting a will in general so any advice for non-IP related stuff is fine too but those resources are easier to find so don't go overboard. What kind of lawyer should I find IP, estate, something else? What kind of costs can I expect (ballpark)? Technical suggestions for hosting, website, etc. bittorrent tracker? Caveats and things to watch our for? Anything else that I'm missing?
posted by metaphorever to Law & Government (11 answers total) 2 users marked this as a favorite
 
It can be difficult to put things into the public domain before their rights expire. Creative Commons have done work to help people do so, and their CC0 may be a help for when you do talk to a lawyer.
posted by fings at 6:26 PM on January 7 [1 favorite]


Are you planning on endowing some kind of trust and appointing (and paying) a trustee to be in charge of running and administering the website?
posted by jayder at 7:04 PM on January 7


This will be my first time drafting a will in general so any advice for non-IP related stuff is fine too but those resources are easier to find so don't go overboard.

The non-IP related stuff is going to be where you want most effort. If that part isn't working, you can kiss the IP part goodbye, usually. If the clauses in the will getting rid of your property aren't right, it will be far less likely the IP part will even be worth the paper its written on.

Start with a real trusts and estates lawyer in your area. The IP part will be drafted by him or her in consultation with an IP attorney.

Wills aren't easy things and if you don't have any IP or assets yet, then you ought to hold off.

Plus, why use a will? Incorporate a trust with the rights of the IP in it and then give yourself a life interest in the trust corpus and then instruct the trust to release the item into the public domain after your death. Put funds in the trust to pay for this at the time of your death. Who knows what the IP laws will be then, and a will that ineffectively waives the rights because the law is wrong, well, not a good thing.

All of this is stuff a good trust and estates lawyer will know. Unless there are real assets at stake, its better to wait.
posted by Ironmouth at 8:13 PM on January 7 [1 favorite]


Thanks, Ironmouth. Your comment helped me clarify what I'm trying to do here. You're correct that I have no real, as in monetarily valuable, assets at stake here. Because of this, and until that time, I think you're right that there's no need for the legal side of it to be too extensive. I'm realizing that my goal here is not really about making sure that all my works are completely unencumbered by copyright and more about making sure that the works that I want to share with my loved ones specifically and the rest of the world in general can live on in distributed digital form. People 'pirating' my content after I'm gone is no worse than them getting it copyright free as long as it's equally available to be shared. I think you're right that a trust seems like a better way to structure this, both for future changes in the law and so that the hosting bills keep getting paid.

With all that in mind does anyone have any input on the technical and social side of this? Thoughts on curating your own digital memorial? How does the approach change when it becomes less of a legal question and more of a 'what song do you want at your funeral' kind of deal?
posted by metaphorever at 9:54 PM on January 7


On the technical side, you could include a provision that your IP be uploaded to the Internet Archive under a CC0 license: audio, video, text
posted by hades at 12:08 AM on January 8 [1 favorite]


It can be difficult to put things into the public domain before their rights expire.

This is, unfortunately, true. Copyright isn't something you have to ask for. As soon as a "work of authorship" is "fixed in a tangible medium," copyright applies. I'm not aware of any well-tested means of preventing that from happening, or of legally disclaiming copyright once it attaches.

So I think what you probably want to do is just sent up a provision in your will--and Ironmouth gives great advice about that--indicating that any IP that your estate happens to hold is licensed to the public. Copyright would vest in a trust created by the will, but the trust offers a free license to use the IP without people having to ask permission. That way no one else can come along and try to claim title to the copyright. You're not really trying to divest yourself of rights, you're trying to exercise those rights in a way that benefits the public.

Does that make sense?

As to the technical side of things, there are actually companies out there that operate digital memorials. You can actually have QR code on your headstone that links to a curated memorial website page. I'm sure that if you wanted to, you could arrange to pay extra for storage space so that any files you wanted made available would be preserved.

But that option depends upon the continued existence of the company in question. You might do better to just go with the trust. The advantage there is that the trust would have an administrator--probably the lawyer or firm that helped you with the will--who would administer the estate in perpetuity. If the estate directs the creation of a website, or the maintenance of one you've created yourself, the administrator would have to do that. This would cost money, of course, so you'd have to fund the estate somehow,* but that's about as close as you can get to guaranteeing that a legacy outside a graveyard will continue on for as long as possible.

Estate/trust administration is actually an incredibly desirable niche legal practice. It pays decently, the clients are all dead, the lawyer can pay himself directly out of funds over which he has control, it doesn't take much work, and the lawyer can hand off the book of business to another lawyer if necessary. Suffice it to say that yes, this is a thing, and if you wanted to do a digital memorial this way, you totally could.

*Life insurance would be an option.
posted by valkyryn at 8:14 AM on January 8 [1 favorite]


>It can be difficult to put things into the public domain before their rights expire.
>This is, unfortunately, true. Copyright isn't something you have to ask for. As soon as a "work of authorship" is "fixed in a tangible medium," copyright applies. I'm not aware of any well-tested means of preventing that from happening, or of legally disclaiming copyright once it attaches.

I disagree. I would think that any properly drafted and authenticated declaration that is made, and posted publicly, would result in a relinquishment of copyright. Maybe it would legally still be under copyright but with a declaration that the owner waives any enforcement rights. I know of no reason that that cannot be incorporated as an instruction in a will or trust.

But I would join in the suggestions to use Creative Commons as an alternative. The biggest risks in releasing a work to the public domain are (1) no attribution is required and (2) a person doing a later adaptation would be free to place it under restrictions unless the CC BY-SA license is chosen. But if you don't care about that, the CC0 designation would seem to be the type of public declaration I have in mind.
posted by yclipse at 2:15 PM on January 8


I would think that any properly drafted and authenticated declaration that is made, and posted publicly, would result in a relinquishment of copyright.

I understand that intuition, but that doesn't seem to be correct. The statute doesn't actually provide a clear and definitive way to effectively terminate the copyright in a particular work before it expires. Indeed, there is actually a section (17 U.S.C. 203) which provides that an author or his heirs may terminate any copyright transfer or license up to thirty-five years from the transfer. Even if you did say that you were putting something into the public domain, the actual effect would simply be that of a revocable license for that period of time. Which is why you'd really need to set up that trust I discussed earlier.
posted by valkyryn at 12:54 PM on January 10


Huh. But even the having the copyright vested in the trust wouldn't prevent the OP's widow, children, or grandchildren from exercising their right of termination against the transfer to the trust, would it?

Man. Every time I think I have a handle on how fucked our copyright laws are, I find out about something new. I mean, yeah, this is great for artists (or their heirs) who got a bum deal from their label/publisher and want to get their work back. But there ought to be a way to do that without also preventing people from dedicating their work to the public domain such that their heirs can't grab it back. What if I don't want my heirs to benefit from my work? Too bad for me, I guess?
posted by hades at 8:24 PM on January 10


But even the having the copyright vested in the trust wouldn't prevent the OP's widow, children, or grandchildren from exercising their right of termination against the transfer to the trust, would it?

Hmm. Actually, on closer reading, the statute says that the right of termination only applies to transfers made "otherwise than by will." Which is an interesting little loophole.

So if the author is living, there's simply no way to make a copyright go away, as any such transfer would definitively be governed by section 203, enabling the author (if living) or his statutory heirs (if dead) to exercise a termination right. But if the author dies and deals with the copyright in his will, that termination right shouldn't attach.

Which means not that a testamentary transfer to a trust would be definitely effective and not admit any possible termination right.

It also means that an attempted testamentary release into the public domain could theoretically be effective, though I think it problematic at best. The law simply doesn't have any applicable provision for extinguishing copyright before the expiration of the term. The heirs of an author who attempted to release his works into the public domain by a bequest could plausibly argue that the bequest would constitute a legal nullity. This would not be a case of attempting to invoke the section 203 termination rights. The argument is that because this is not something the author could have done while alive, there is no obvious reason he could do it with a will.

Ultimately, we're falling back on the difficulties inherent in property law in general, not just IP law in particular. Specifically, if a given thing is property, it needs to be owned by someone at all times. Copyright is a species of property, one with a fixed term. Compare to the concept of the life estate, another form of property which is not perpetual. Once a life estate is granted, the main way of making it go away is for the person by whose life the estate is measured to die. They can certainly transfer their interest to someone else, but because they didn't have the fee simple, the transferee will only have a life estate.

I think that basic concept applies here as well. Copyright is a species of property with a fixed duration which can only be extinguished in one way, i.e., the expiration of the term. There is simply no legal mechanism for making that term expire early.*

*The comparison is not precisely on point, because a life estate can be extinguished early by the life tenant conveying his interest to the remainderman. But "the public domain" isn't a legal person and so can't be a counter-party to any kind of conveyance. It's precisely that lack of a counter-party which the creation of a trust is intended to fix.
posted by valkyryn at 9:51 AM on January 11 [1 favorite]


Interesting! Thanks, valkyryn! (And sorry for semi-hijacking your question, metaphorever.)
posted by hades at 9:36 PM on January 12


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