Public domain software is not open-source?

[Ernest Prabhakar]

Hi all,

If you're going to keep discussing this, at least try to make it into  
relevant FAQs.

Thanks,
-- Ernie P.


Q. Is it possible to explicitly declare a work to be Public Domain by  
waiving your copyright?

Legal opinions differ cf. <http://linuxmafia.com/kb/ 
Licensing_and_Law>, but there are some precedents which imply that it  
might be possible:

[Are there links to these online?]

> "Waiver is the intentional relinquishment of a known right with
> knowledge of its existence and the intent to relinquish it." United
> States v. King Features Entm't, Inc., 843 F.2d 394, 399 (9th Cir.
> 1988).

> In copyright, waiver or abandonment of copyright "occurs only
> if there is an intent by the copyright proprietor to surrender rights
> in his work." 4 Melville B. Nimmer & David Nimmer, Nimmer On Copyright
> ¶ 13.06 (2000); see also Micro Star v. Formgen, Inc., 154 F.3d 1107,
> 1114 (9th Cir. 1998) (discussing abandonment). ; A&M RECORDS, Inc. v.
> NAPSTER, INC., 239 F.3d 1004 (9th Cir. 2001)
>
> "It is well settled that rights gained under the Copyright Act may be
> abandoned. But abandonment of a right must be manifested by some overt
> act indicating an intention to abandon that right. See Hampton v.
> Paramount Pictures Corp., 279 F.2d 100, 104 (9th Cir. 1960)." Micro
> Star v. FormGen Inc. 154 F.3d 1107 (9th Cir. 1998)


As always, consult your own legal counsel for their opinion.  If you  
insist on pursuing this option your for your own software, it is  
probably best to use a formal Public Domain Dedication a la Creative  
Commons:

http://creativecommons.org/licenses/publicdomain/

Of course, from an Open Source point of view, you can achieve a very  
similar effect by simply using a permissive license like the MIT  
License <http://www.opensource.org/licenses/mit-license.php>


Q.  Is Public Domain software also "Open Source"?

Not really, since it is not under an OSD-approved license.  However,  
truly public domain software can always be made available under an OSD  
compliant license, so in practice the issue is moot.






On Mar 3, 2008, at 3:24 AM, Alexander Terekhov wrote:

> On Sun, Mar 2, 2008 at 8:44 AM, Rick Moen <rick at linuxmafia.com> wrote:
> [...]
>> See:  "Public Domain" on http://linuxmafia.com/kb/ 
>> Licensing_and_Law/ ,
>> for my recap of some obstacles to unambiguously nullifying, by act of
>> will, a work's copyright ownership interest, before expiration of its
>> copyright term.
>
> regards,
> alexander.
>
> --
> "12/21/2007 ORDER TO EXTEND TIME FOR DEFENDANT...
> 01/22/2008 ORDER TO EXTEND TIME FOR DEFENDANT...
> 02/19/2008 ORDER TO EXTEND TIME FOR DEFENDAT(sic)...
> 02/26/2008 ENDORSED LETTER addressed to Judge Laura Taylor Swain from
> Daniel B. Ravicher...
> 02/27/2008 ORDER that Defendants Verizon Communications, Inc. has
> until March 14, 2008..."
>
>  -- 1:07-cv-11070-LTS aka Never Beginning "GPL Enforcement" case