Subject: Re: Please add "Public Domain" to "license" list
From: "David A. Wheeler" <>
Date: Sun, 16 Mar 2003 13:41:59 -0800 (PST)

--- David Johnson <> wrote:
> But you have to realize that there are many problems that would come 
> along with this recognition. The first problem is that of domains. 
> Public Domain is in a completely different domain that why OSI is 
> trying to define. PD has no copyright, while the OSI is trying to 
> define a classification of software that has copyrights.

I disagree.

I believe what the OSI is trying to do is help people determine
if a given piece of software is "open source software".
Thus, a clear declaration that "public domain source code is
open source software" is EXACTLY what the OSI needs to be doing.

> The second problem is much more serious. How do you *know* that a
> piece of software is in the public domain? ... it's very hard to 
> tell if a particular work which claims to be public domain really is.

That's an important issue.  In fact, it's so important that
not publicly noting this issue is a big problem!
So clearly, any statement about "public domain" needs to note that
you have to check very carefully that it really is public domain.

> A recognition of Public Domain by the OSI could 
> lead a lot of people into legal quagmires.

I believe FAILING to note the quagmire is MUCH WORSE.
The way to avoid legal problems is not to talk about them.
The way to avoid legal problems is to make sure people know that
"there's an alligator here, check XYZ carefully."

> So here's a question to you. What is your pressing need for such a 
> recognition? What problem is the lack of such recognition causing?

Several problems:
1. I've now encountered a lawyer who wishes to claim that public domain
is NOT open source software. 
2. When discussing open source software with governments, it's very
useful to be able to say that "US law ALREADY REQUIRES that software
be released as open source software under certain circumstances."
This doesn't prove that they should always release or use open
source, but it at least clarifies that this is not such an odd thing,
they'be been doing it all along.
3. It's dreadfully inconsistent.  Why would software that completely
meets the entire OSD _not_ be open source software?
4. By failing to warn about "please check that it's really
public domain", OSI is letting people get in trouble.

Hope that helps.

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