Subject: Re: Can OSI specify that public domain is open source?
From: Rick Moen <rick@linuxmafia.com>
Date: Wed, 7 Sep 2011 15:58:19 -0700

Quoting Thorsten Glaser (tg@mirbsd.de):

> (On a related question: files with pre-1989 mtime and no © notice _are_
> PD in the USA, right? Just to get at least this part clear.)


Wrong year, I think.  You're probably thinking of the Berne Convention
Implementation Act of 1988, which took effect on March 1, 1989.
However, much earlier, the Copyright Act of 1976, section 102 (effective
January 1, 1978), started bringing the US in compliance with existing
treaty by repealing prior copyright provisions that works distributed
without copyright notices could be _ruled_ to have passed into the
public domain.  Before that, copyright protection was available only to
works that had been _published_ and consistently had copyright notices.
If the work were unpublished (only put into 'fixed form') or were
distributed to some non-trivial degree without copyright notice, a judge
was likely to rule it uncovered by the statute, hence unprotected.  This
was called the Publication Doctrine.

You may recall that that was a vital point in Justice Debevois's 1993 US
District Court preliminary ruling[1] in USL v. BSD and UC Regents:
Debevois summarily denied USL's motion for prelimnary injunction on
grounds that USL had widely distributed copies of UNIX/32V without
copyright notice.

The 1976 act changed all that.  I vaguely recall that there was also a
transition provision where works with defective copyright notices
post-1978-1-1 could have their notices repaired, but I'm not finding
that at the moment.

[1] http://www.nastyprisms.com/temp/cache/cm.bell-labs.com/cm/cs/who/dmr/bsdi/bsdisuit.html