Please add "Public Domain" to "license" list

[David A. Wheeler]

--- Rick Moen <rick at linuxmafia.com> wrote:
> Quoting David A. Wheeler (dwheeler at dwheeler.com):

> I'm not sure there's reasonable consensus on the legal effect of
> declaring one's copyrighted work to be in the public domain.

I'm not a lawyer, but I talk to them!!  I think there _is_
a reasonable consensus on this point.  Certainly, people
place things into the public domain with this expectation,
and there are no laws PREVENTING people from giving up their
copyrights.

Besides, there is software that is automatically in the public domain
without such declarations: software
written by U.S. government employees in discharge of their
official duties is officially in the public domain.
Thus, even if you don't think people can put their works in the
public domain, this is still an issue.


> In the context of USA Federal law, at least, I've looked in vain
> through
> 17 USC to find any provision permitting a copyrighted work to become
> public domain before expiry of its copyright term.  

But nothing prevents it either.

> People have sometimes claimed that caselaw has interpreted
> public-domain
> declarations as irrevocable licences for gratis usage by anyone --
> but I
> haven't seen citations, let alone any showing that wide legal
> precedent
> exists.

That's not limited to public domain.  Indeed, some lawyers will
claim that _NO_ open source license is irrevocable, for the
same reasons.  If you think the GPL is irrevocable - and
that interpretation IS a community norm - then so is
public domain.  And courts are required to consider community
expectations in such cases.

> Moreover, it seems a-priori unlikely that an author could
> excuse himself from any duties that go with copyright ownership,
> though
> such a declaration:  Otherwise, it'd be a dandy way to evade
> product-liability lawsuits.

Now THAT is true.  Public domain is a lousy idea for many people,
because it exposes them to lawsuits.  Which is why both
Berkeley and MIT decided to create the BSD and MIT/X licenses -
about the only thing they do is provide some lawsuit protection.

But the U.S. government can only be sued if the U.S. government
allows it, and it can (and does!) produce public domain software.
And people are allowed to give things away, even if a lawyer
would advise them not to.

I don't think this is a can of worms, it's just a clarification
of existing practice.  There's already public domain software,
and it meets the open source definition.  The problem is that
it's not clearly stated that way, and it should be.

You could add text that notes that in some countries this
may expose you legal liability, and other license such as the
MIT/X or BSD-new license might be more suitable. And you could
add other notes, if you wished.  You could even claim that some
lawyers believe that you can't release software to the public
domain, if you could find such lawyers.  I would certainly note
that the source code had to be placed in the public domain - not just
the object code.  That's the sort of note that would help users.

If a government released some software source code to the
public domain, would the OSI claim it's NOT open source?!?



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