View source for Public domain

{{confianat|1}}{{d|Public domain|/ˈpʌblɪk dəʊˈmeɪn/|n|}}

Without wishing to rip off the Cambridge Dictionary — but since I found it on the internet, it ''is'' in the public domain,<ref>https://dictionary.cambridge.org/dictionary/english/public-domain</ref> at least according to its own definition:
{{quote|“if information is in the public domain, it is available for everyone to see or know about”}}

That is the ''colloquial'' use: “public domain” is really just a pompous way of saying “public”. 

But “public domain” also has a technical, narrower definition hailing from the law of [[copyright]]: information that is “in the public domain” is information that ''could be'' protected by [[intellectual property]] rights, but ''isn’t'', whether because those rights have expired, been forfeited, waived, or for some other reason just don’t apply.

Being open source, the [[OneNDA]] itself is “in the public domain” in this narrow way. But the information one may share under it is not. Yet, in its “[[carve out]]” from the scope of confidentiality, the first version excludes information that is “in the public domain” rather than simply “public”.

This is a cue for [[Doyen of drafting|those who take pleasure from such things]], to raise a [[Knee-slide and jet wings|technical objection]]. 

“''Aha! This is too narrow! This is wrong-headed!'' This means only information that is out of [[copyright]] is excluded from the [[confidentiality obligation]]. But  it really means to exclude information that is ''public''!”

We remark at once that if one applies that technical, fussy reading, this is correct. Even if you don’t, the [[prose stylist]] in you might feel “in public” to be a neater expression, if that is what you mean. But we are where we are.

But those who come to a text must approach it in good faith, mindful of context, and with a practical attitude. It is face-slappingly ''obvious'' what is meant here. [[Copyright]] is a tool for exploiting the commercial value of information by making it, in a controlled way, public. An [[NDA]] is a device designed to prevent that.

If information is public, but not yet ''in the public domain'', it is, [[Q.E.D.]], ''not'' confidential, and ''calling it'' “confidential” does not change that.

But, as we know, the eyrie overflows with nervous chickens. They fear they have undercooked their goose. 

But have they? Let us work this logic out, taking “public domain” to have its technical meaning. Imagine the argument that might unfold should one fellow have passed to another, under protection of  [[OneNDA]], information that is in fact widely known, but is not yet out of [[copyright]]. 

For example, a [[prospectus]], composed not six months ago and at great cost by learned counsel; undoubtedly a work of a creative effort, if not style or imagination. This tract attracts automatic copyright protection.<ref>Pedants: can we agree, for the sake of argument, that even if enforcement of copyright is not insisted upon, its waiver was not so definitive as to put it “in the public domain”?</ref>  Yet it has been published, for all the world to see — with that express intent, in fact — and is in no sense secret. 

Thus, according to the narrow reading of “public domain”, under [[OneNDA]], this prospectus would still be impressed with the obligation of confidence. The rest of the world might know it and share it but, having received it under this [[OneNDA]], I may not.

A few observations.

Firstly, if we are going to be pedantic — and everyone ''else'' is, so why not — “what the rest of the world knows” is strictly beside the point. The rest of the world is not party to this contract. 

If I have received information in confidence, I must treat it that way, ''whatever'' anyone else knows. What does it matter that information you have told me is secret happens not to be? Should I be automatically entitled to shout it from the rooftops, even though I have promised not to? It is hard to see why.

Secondly, if I should happen to disclose information given to me in confidence, but that happens not to be secret — perhaps someone else in my organisation, unaware of my confidentiality obligation, shared a copy obtained elsewhere<ref>“Having obtained the information elsewhere” being another exception to to the confidence obligation in any case, of course.</ref> — then ''what is the discloser’s loss''? What ''[[damages]]'' has she suffered? This goes not to the scope of the confidentiality obligation itself, but one’s recovery, should it be breached. This is not complicated stuff. You may remember it from your first year in law school.

Thirdly, making the outlandish supposition that the discloser brings an action before court because I have passed on information that is, in any event, readily available on the internet, how will the court interpret “the public domain”? 

As a rule, judges are not wantonly perverse. They don’t go out of their way to upset the plain intent of the parties, just because they are clumsily articulated. To give any sense to a contract ensuring secrecy, not commercial exploitation, remember, courts will read “public domain” to mean “public”. Yes, it is a redundant, ungainly way of saying “public” but look, the canon of English commercial contracts are hardly a model of tight, elegant prose.

For if the complaint is “unnecessary fussiness” then, yes, guilty. But show me a commercial contract that is not. So why stop with “domain”? Any exclusion of public information, when describing something confidential, is fussy. It goes without saying. “Confidential” ''means'' “not public”.

We resort, at last, to our good friend [[Voltaire]] and his observation “[[perfection is the enemy of good enough]]”. [[OneNDA]] is a community effort; its organisers did a magnificent job of marshalling literally hundreds of aspiring pedants to produce something lightweight and workable. Do not expect so much: it is miracle enough as it is, ''without'' being perfect. 

Look at this one as a beauty spot, that might fall aside when it comes to version 2.

{{sa}}
*[[Copyright]] and [[patent]]
*[[Perfection is the enemy of good enough]]
*[[In your face]]
{{ref}}