Certification Mark: OSI Certified

Karsten M. Self kmself at ix.netcom.com
Fri Apr 13 00:34:09 UTC 2001

on Thu, Apr 12, 2001 at 02:52:52PM -0700, Lawrence E. Rosen (lrosen at rosenlaw.com) wrote:
> No, I intentionally removed the clause relating to public domain software.
> That was removed for reasons that are best discussed separately if people
> are interested.  The "public domain" was the subject of an intense
> discussion among the OSI board a couple of months ago.  To briefly
> summarize, I believe the legal community generally holds that the term
> "public domain" has little relevance to useful software -- by which I mean
> software written and/or published since 1978.  /Larry

This was largely what I was alluding to with my comments on PD in a
response to Frank Hecker.

My understanding is that the rigorous definition of public domain, under
copyright, is those works to which copyright has lapsed.

In the US, there is vanishingly little software that falls into this
category.  Under law since 1976, copyright is bestowed upon "works of
original authorship fixed in tangible media" at the time of creation.

Previously, copyright was granted on registration for a maximum of two
successive terms of 28 years, up to a total of 56 years.  Extant
copyrights at the time of the 1976 act were grandfathered, IIRC, which
pushes the most recent date at which software might have lapsed into PD
as 1947.  Software which had _not_ been registered, written between 1948
and 1976, might be PD, though I'll take lawyerly advice on this.

Otherwise, it's possible that any work written since 1920 is currently
covered by copyright.  This would probably encompass a significant
portion of the currently viable software corpus.

The lay interpretation of "public domain" includes works to which an
author has disclaimed interest in exclusive rights under copyright law.
I believe Larry's interpretation is that such works are _governed_ by
copyright, however, they are, expressly or implicitly, licensed for use
free of restraint by the author.  More confusing are licenses or grants
which read as "this software is public domain with the following
conditions...", usually proscribing commercial use or some other

The statutory restriction under US law is against copyright in works
created by the Federal government.  17 USC 105.  The Federal government
may *hold* copyrights granted it by others.  This proscription does not
apply to state or foreign governments. 

Karsten M. Self <kmself at ix.netcom.com>    http://kmself.home.netcom.com/
 What part of "Gestalt" don't you understand?       There is no K5 cabal
  http://gestalt-system.sourceforge.net/         http://www.kuro5hin.org
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