Subject: Re: Please add "Public Domain" to "license" list
From: 'Rick Moen' <rick@linuxmafia.com>
Date: Sun, 16 Mar 2003 17:49:22 -0800

Quoting David A. Wheeler (david_a_wheeler@yahoo.com):

> The OSI examines the conditions of software releases, to determine
> if they meet the open source definition.  I've provided a release
> situation that I believe meets the open source definition, and am
> asking the OSI to publicly state that the release conditions meet
> the OSD.

What you've not done (in my[1] view) is provide wording that can be used
for this purpose without creating vastly greater problems than the
wording solves.  To be sure, that isn't necessarily your problem, but
it's inevitable in volunteer organisations that things are more likely
to happen if you do the footwork.  

Also, your attempting to cobble together such wording will, I predict, 
show you what's problematic about the category.  I say this as someone
who's tried in the past.

> It's not a traditional license, but in 1984 the GPL wasn't a
> traditional license either :-).

At the risk of both literalism and repetitiveness:  It's simply not a
licence _at all_.  Never was, never will be.

Stepping back to look at the big picture, for a moment:   As I
understand it, prior to 1978 in the USA, things were actually a little
clearer: 

A work was under copyright if it was:

o  A creative work in fixed form in one of the statutory categories
   (a literary, musical, dramatic, choreographic, pictorial, motion-picture, 
   sound, or architectural work).  For example, typefaces are uncopyrightable
   (though hinting/rendering programs included in computer fonts are not).
o  with a valid copyright notice
o  within the statutory period.

A work was public domain if any of the following was true:

o  Not a creative work (e.g., a five-line shell script).
o  Outside the statutory categories.  For example, fonts are
   uncopyrightable (though hinting/rendering programs included in 
   computer fonts are covered).
o  Bearing a defective copyright notice through failure of the 
   copyright owner to do it correctly (though you might have to
   fight over that in court, and had better hope some third party
   didn't mangle the owner's notice).
o  Bearing _no_ copyright notice (with the same proviso).
o  The coverage period has expired.

The 1978 amendment removed the need for copyright notices.  Works became
subject to automatic coverage -- under proprietary terms by default.

Getting back to my PalmOS archive:  My experience reminded me that not
only is awareness of licensing rare, but also that there's a long
tradition of trying to ignore licensing and hope it will go away.  When
I reminded the Pila developers that some of them hadn't recorded their
permission grants, here's what they said:

> I am aware of no copyright given to me or Darrin, the original porter of
> Pila.  As for my work, I grant anyone full use in any fashion they see
> fit.

and

> The same for me.  I have only done very little changes, and I don't care 
> about the license of Pila.

and 

> In my eyes Pila is already freely available for anyone to use as he or
> she -- or even it -- sees fit.  In other words, here's my permission
> for you to technically move Pila to the Public Domain.

and

> I hereby place my work on Pila in the public domain!  P.S. good job
> tracking everybody down.

These attitudes are extremely common among programmers, outside the
core open-source community:  They typically announce no licence
permissions, believing in error that thus releasing code makes it public
domain.  When you explain the truth to them, and advise them on why they
should at least specify MIT/X or two-clause BSD, they nonetheless want
"public domain" anyway -- with all uncertainties and needless legal
liability entailed -- basically because they don't want to think about
the subject, and assume simpler is better.

The above recounting well illustrates, I think, why practically all
allegedly "public domain" software one encounters is prone to submarine
copyright problems.  (This is a risk with all software, but with
other offerings, one at least has the defence of good-faith reliance on
disclosed copyright holders' impliedly sufficient title.)  

Anyhow, if you think you can write an explanation of "public domain"
that OSI can use to net-beneficial effect, _and_ a place to put it
(which clearly is not on the list of approved licences), then by all
means write and propose it.

[1] Please note that I'm not an OSI Board member, just a mailing list
participant.  The Board membership is listed here:
http://www.opensource.org/docs/board.php

-- 
Cheers,              "The front line of defense against such sophisticated 
Rick Moen            viruses is a continually evolving computer operating 
rick@linuxmafia.com  system that attracts the efforts of eager software
                     developers."  -- Bill Gates         
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