Subject: Re: Why?
From: "Rod Dixon, J.D., LL.M." <>
Date: Mon, 29 Dec 2003 17:02:52 -0500

: Why do organizations that release software under a permissive,
: non-copyleft license, use a license in the first place?

This is an interesting question.  I am assuming that the poster is really
asking why use a non-copyleft license rather than a dedication to the public
domain, but since the poster added the query: " if you are not interested in
keeping your software free, then why would you release your software  with a
license," there may be a question concerning why use a license at all, if
the license is a permissive, non-copyleft license? I will offer my opinion
on the latter question first.

 As a general matter, I think those who are comitted to open source are
better served by using an open source license than in not using one. As
reasons, I would include those regarding how even the most permissive open
source license is likely to support the value of open source software than
no license. Aside from that, it is worth considering that software as a
literary work under copyright law is not exactly like typical literary
works.  If you purchase a book, for example, its basic ideas are apparent
upon your use or enjoyment of the work; not so with software where many/most
of the ideas remain hidden in the source code. If you want to access the
hidden ideas, you usually need a license. In some respects, therefore, the
default rules of copyright might be said to disrupt a copyright holder's
ability to go without a license, even if the intent is to allow the end-user
the same or a similar level of access as a book reader might have.

What is the
: difference between BSD and public domain?
: I understand the need for a license, the use of copyright law, to keep
: software free through copy-left. But if you are not interested in
: keeping your software free, then why would you release your software
: with a license?

I think this question is slightly confusing. The fact that the BSD is
permissive does not mean it cannot be used successfully as the legal
instrument for developing an open source software project. The original
copyright holder may have competitors (and some degree of free-ridering),
but there are ways to manage these projects; most important, competition
among forks (or, proprietary free-riders) is neither by necessity a bad
thing, nor equivalent to abandonment of rights in your software.
Consequently, a BSD licensor is not stuck using the license or dedicating
the work to the public domain. It seems to me that two key pieces of this
puzzle is that the potential licensor first establishes what he or she wants
to accomplish, then selects a legal strategy and method to implement the
goal; only if you reverse  the order of the pieces do you create the
conundrum of comparing the BSD license to the public domain.

As the poster noted if, however, one wants to dedicate a software work to
the public domain (with access to the optimal source code assured), doing so
is slightly more difficult in the US. than it once was. The poster seems to
ask whether the public domain should shield dedicators from all or certain
forms of liability? To answer a question with a question: Does the story of
the trojan horse provide a likely answer?


Rod Dixon
Open Source Software Law

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