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Clustal and the 'public domain'

A.F.W.Coulson at edinburgh.ac.uk A.F.W.Coulson at edinburgh.ac.uk
Mon Jan 22 11:48:10 EST 1990

>Could anyone please clarify these points on public domain software?
>RE the recent announcement on BIO-SOFT that Intelligenetics now has
>worldwide distribution and licencing rights for CLUSTAL. They state that
>the program is 'no longer public domain', and request users to remove it
>from their systems.
>It appears to have BEEN public domain prior to 23 November 1989 - so how
>can it now be withdrawn?
>What about copies pre-dating 23rd November, including PC versions?
>What is the likely position if other authors decide to do likewise?
>I do not intend any offence to the author of this software, and would like
>to respect his wishes. But there could be a precedent here.
There is an English tradition to put up signs round your land saying

               |                           |
               |    TRESPASSERS WILL BE    |
               |                           |
               |        PROSECUTED         |
               |                           |
               |               By Order    |

This may frighten some pedestrians away, but is without legal force; one
cannot be prosecuted merely for trespassing.

Somebody who has received a copy of 'Clustal', legitimately and from its
owner, may have an agreement with the owner about the use that he can make
of it, and this agreement might give the owner the right to ask for the copy
to be destroyed.  It would have to be an explicit term of the agreement, and
even then might be hard to enforce, unless the agreement was a real contract
(I think I once saw that fine American actor, John Houseman, playing a crusty
old academic lawyer, explain that a precondition for the existence of a contract
is the 'consideration' for which the goods or sevices are being exchanged, and
I dont see how this can be met if software is distributed free).  I think it's
quite certain that the owner could not transfer that power to a third party
without the consent of the parties to the original agreement.  You can't buy
and sell contracts unless it's a term of the contract that you can.  Slavery
was abolished even in the US more than a century ago.

Of course, this is only the _legal_ position.  Just as you might abstain from
trespassing out of decency, so you might choose to destroy Clustal and buy
another copy from IG out of a generous impulse, and feeling perhaps that it
would be better to pay for what up till now you've had for free.

'In the public domain' is a phrase that muddies the waters, I think; there
is no mechanism for alienating your copyright in the UK; the owner retains
copyright unless he passes it to another.  He may choose not to stop other
people copying his work, but he can start to do so anytime he wants.  This
wouldnt mean that he could go about destroying copies that had been made
legitimately, though.

Finally, only courts establish precedents; so whether you do or don't comply
with IG's request won't affect the situation if a case arises again.

Andrew Coulson

Dept of Molecular Biology,
University of Edinburgh,

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