Public domain software is not open-source?

[Nick Moffitt]

Rick Moen:
> Quoting Matthew Flaschen (matthew.flaschen at gatech.edu):
> > This isn't my discussion.  I am merely pointing out that OSI has
> > recognized the possibility (note: not existence) of PD, open source,
> > computer software.
> 
> At bare minimum, software of some very early computers will have, by
> now, passed into the public domain unequivocably.  I doubt any remains
> of general interest, however.

When doing the license audit of the LNX-BBC at the FSF years ago, I
discovered that our version of the compress library had been written
before the Berne convention made implicit copyright the norm, and had
never had any explicit copyright asserted.  The COPYING file simply had
a note saying that the author and all who worked with him sincerely
believed that the work was in the public domain.

Of course, in the process of packaging it for a modern Linux system, we
had had to make somewhat trivial revisions.  This in turn created a
derived work.  

After the LNX-BBC project had retired, I wondered if we had done the
wrong thing by leaving the "public domain" documentation in the source:
since we made the modifications *after* the Berne convention came into
effect, that meant our tree was eligible to be a fresh new work with
copyright implicitly assigned to us.  Without placing a new real license
in the tree, it may have defaulted in the eyes of some to the "all
rights reserved" status.

The specific question is moot, but the general pitfall is one that I've
since seen as a risk in the legal minefield that is "public domain"
software.

> In any event (as my page also mentions in passing), OSI's certification
> program certifies licences.  Public domain is not a licence.

Indeed, and that rather makes this whole discussion (including my
anecdote above) somewhat off-topic for this list.

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