Subject: Re: Please add "Public Domain" to "license" list
From: Rick Moen <rick@linuxmafia.com>
Date: Sat, 15 Mar 2003 12:30:52 -0800

Quoting David A. Wheeler (dwheeler@dwheeler.com):

> Okay, if you wish to view things this way, then please clarify
> that source code in the public domain also qualifies as
> open source software.  The problem is that some people may not
> understand that source code in the public domain is open source
> software.

That problem might be worth fixing, but not (in my view) at the risk of
creating worse problems.

> Something like this could be under the "public domain" heading:

A public domain heading _where_, by the way?  On what page?  OSI has an
on-line list of approved licences, but public domain isn't a licence,
let alone an approved one.

It seems that you're suggesting putting an unapproved non-licence on a
list of approved licences.  Doesn't seem a good idea, to me.

> PUBLIC DOMAIN:
> 
> Technically, software in the public domain has no license at all.

Well, much more to the point, it has no copyright.  (I realise you have
the above sentence to explain putting a non-licence on a list of
licences, but it has the side-effect of obscuring slightly the nature of
public domain works.)

> Any software source code in the public domain also meets the
> conditions of the open source software definition.

While true, this tends to exascerbate the common problem of people
assuming things are public domain that actually are not.  Outside the
specialised membership of this mailing list, most members of the
computing public assume in error, for example, that any source-available
software they find that lacks a copyright notice is public domain.  OSI
should carefully avoid contributing to this common mistake.

Let me give you an example:  When I was accumulating my collection of
all known open-source software for PalmOS, at http://linuxmafia.com/palmos/, 
I learned not to trust on-line information about packages' licensing,
including statements by software authors.  In order to weed out outright 
proprietary packages, ones with licence conflicts, etc., I essentially
had to do a licence audit of source code for every candidate package.

One such package was Pila, an (allegedly) open-source assembler utility
for PalmOS, and thus a key piece.  Licence grants were included from a
couple of the project's four maintainers, and the other two quickly
added theirs when I reminded them.  However, there was a problem:  Pila
got its start as a derivative work of an assembler for Motorola 68000 
chips, written by a college student and placed on the Net without
licence.  The creators of Pila had found it, and simply assumed it was
public domain -- inadvertantly violating the college student's copyright.

The student had not been heard from since 1986.  As it happened, I
managed to track him down as an employee of Microsoft Corporation, and
he gracefully granted what amounted to BSD licence terms in an e-mail to
me, which Pila now includes in its tarball.  Had this not happened, Pila
would have existed under the shadow of that fellow's tort claim against
it -- as would any further packages that borrowed code from Pila in
reliance on its assertion of being open source.

> Some software, such as unclassified software written by U.S. government
> employees as part of their official duties, is automatically
> in the public domain.

It would be more fair to say that this is just about the _only_ software
currently being created that automatically enters the public domain
without a period of copyright coverage.  In my research, I found that
prior to 1978-01-01, it was possible in the USA to lose copyright
protection through pilot error, e.g., by publishing the work without a
valid copyright notice.  Beginning 1978, however, to bring US law in
compliance with treaty, copyright has come into existence automatically
whenever you put a (covered) creative work "in fixed form" -- and owners
got a five-year grace period to fix any broken copyright notices.  It's
possible that some software became public domain through that mechanism,
but not much -- and you'd potentially have to prove it, in the event of
dispute.

Last, copyright coverage applies only to "creative" works.  One might
successfully argue that a five-line shell script has insufficient
creative content to be covered by copyright law.  Once, a couple of
decades back, one of the telcos attempted to bar other companies from
republishing its Yellow Pages listings, claiming a compilation
copyright over the arrangement of ads and telephone numbers.  It
lost completely, because the court said putting together a telephone
directory simply isn't a significantly creative act.

> Note that there are some legal issues and questions when trying to
> place software into the public domain.

This is not _nearly_ strong enough.  It would be more fair to state that
there are serious doubts whether it's possible to simply declare
something to be in the public domain, and that such a declaration may
have either no legal effect, or an effect different from what you
intend.  Further, that effect may differ by jurisdiction.

> Most developers, instead of placing software into the public domain,
> choose to licence the software under a different license (the MIT/X
> and BSD-new licenses are common choices).

You fail to state _why_ -- and the reason why is an absolutely vital
point:  Developers use MIT/X or 2-clause BSD because of the warranty
disclaimer.  Choosing "public domain" instead means you're saying
"Please saddle me with avoidable legal liability in perpetuity, and 
deprive me of all compensating benefits other than credit."  

That can be a very costly legal blunder.  At the bare minimum, I think
OSI wants to avoid contributing to that problem.


In summary:  Your draft fails to explain what public domain is, how it
arises, how it does _not_ arise, the fact that ability to create that
status by fiat is doubtful, and that attempting to create it is legally
reckless.  Further, it proposes to add an unapproved non-licence to a
list of approved licences.

-- 
Cheers,      "Transported to a surreal landscape, a young girl kills the first
Rick Moen     woman she meets, and then teams up with three complete strangers
rick@linuxmafia.com       to kill again."  -- Rick Polito's That TV Guy column,
              describing the movie _The Wizard of Oz_
--
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