Public domain software is not open-source?

Gustavo G. Mármol g.marmol at
Thu Mar 6 01:28:26 UTC 2008


>From my view,

1. "Software" or others works (in the meaning of the Copyright Law Act) can 
be in: a) "Private Domain" or in b) "Public Domain". If the software is in 
Public Domain that´s means it is not protected by Copyright Law, and in 
other hand, if the software is in the "Private Domain" that´s means is 
2. The "Public Domain" and the "Private Domain" are legal concepts. And, in 
Copyright Law, means that the author of the original work hold the right 
(i.e. to grant a license ) granted by law. But neither of them, have any 
relation with the FOSS  and the Propietary Software. By Law, the "Public 
Domain" is a statu quo which means that the term of protection has expired 
(or the author of that work has decided to waived to his right granted by 
law). Therefore, in the Public Domain the work has no protection under 
Copyright Law.
3. Both FOSS and Propietary Software are protected by Copyright Law: Thus, 
the question: Is Public Domain Software Open Source?. The answer is 
absolutely NO. Because the Open Source Software to be protected need as sine 
qua non condition be in the "Private Domain" (a Copyright holder) , that´s 
is to say under Copyright Law.

----- Original Message ----- 
From: "Alexander Terekhov" <alexander.terekhov at>
To: "License Discuss" <license-discuss at>
Sent: Saturday, March 01, 2008 2:39 PM
Subject: Public domain software is not open-source?

> :-)
> -----
> ... OSI lists 68 compliant licenses.
> Richard Hipp, who founded the SQLite database project in 2000 as a
> public-domain project, believes it does qualify as open-source
> software.
> "I've had a number of conversations on this topic with corporate
> lawyers for companies that are actively using SQLite. The consensus
> there seems to be that 'public domain' is valid and is a proper subset
> of 'open source'--except in France and Germany where the concept of
> 'public domain' is not recognized," he told me in an e-mail discussion
> prompted by the Adobe story.
> But not so fast. Take the view of Mark Radcliffe, the intellectual
> property attorney who's general counsel to the Open Source Initiative.
> When I asked Radcliffe if public domain software was open-source, he
> was clear: "No. Truly public domain software is no longer protected by
> copyright, thus it cannot have a license which would impose the terms
> necessary to comply with any of the open source licenses," he said.
> Agreeing with him is Louis Rosen, an attorney with Rosenlaw and
> Einschlag who previously led OSI's legal work and who still is
> involved. He directed me to an older but still relevant piece he wrote
> about why the public domain isn't a license.
> "'Public domain' will never be a license. It actually means 'No
> license required,'" Rosen said. "Software that is 'dedicated to the
> public' or 'to the public domain' is pretty safe. I just worry a bit
> when people or companies give software away in such an amateurish way,
> without understanding that licenses or covenants are far more
> efficient and effective."
> -----
> regards,
> alexander.
> --
> 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

More information about the License-discuss mailing list