Public domain software is not open-source?

[Philippe Verdy]

> De : Arnoud Engelfriet [mailto:arnoud at engelfriet.net] 
> Even a license text accompanying the software proves nothing. 
> I can take your software, add the text of the GPL and change 
> all copyright statements to include my name as owner. Who 
> will be able to tell the forgery?

This completely changes the nature of the forgery, if you have signed such
illegitimate claim. The important thing is the personal and irrevocable
statement. If you lie here, you risk much more in a court because it's a
"true" lie.

But I also think that the absence of such explicit statement is also a lie,
by omission, but effectively a lie: you are disguizing your claim under a
false appearance of legality, trying to transfer your own responsability to
your "licensee", if he does not see that you efectively did not want to make
any explicit claim...

The existence of the explicit coypright notice (or other equivalent
propertty claims) in the product, cannot be approved, whatever the licence
is: it could could a closed proprietary licence or an open licence, or no
licence at all, the important thing that courts have to rule is always the
same first question:
"is there an exclusive right to protect, and if so, who owns it?".

Licences come only after correctly answering this question, to fix the
conditions under which the exclusive rights can be authorized for use (or
reuse) by someone else than the author. Contracts come also in this context
to fix the conditions by which the exclusive rights (ownerships) can be
transfered from someone to another one, and attest that the rights of the
two parties are balanced.

Some countries consider licences as contracts, some not, but the main
difference is about the way they are signed and accepted: licence terms are
unilateral because they are non-exclusive (and there other involved
parties), contracts are negociatable invididually by both parties to each
contract without affecting the rights of other parties.

But in both cases, licences and/or contracts, there is always the prior need
to exhibit an explicit claim of ownership, and making this statement clear
so that the products becomes negociatable (for the delivery by contracts) or
trustable (for the delivery under licences).

The licence does not expose by itself the ownership or claims, it just fixes
the condition of use by the licenceee and possible retaliation by the
licencing owner if these conditions are abused by the licensee. I will never
trust any "licence":

* any licence proposed by someone that I cannot identify (who's that really?
where is it located? in which court will he be liable?), so i reject those
licences signed by virtual names like domain names that are NOT legal
designation (given that domain names are not owned by granted for limited
periods, for a public resource). i wnt their name and address, just like for
contracts or in every commercial transaction, or for participating into some
group where my action could make me liable of other actions performed by
others in the same group, and the group identity must be verifiable
(official registration number, VAT number, official residence where taxes
are collected or where residents can get local rights...)

* any licence that does not correctly indicates what is covered in the
licenced product. The product needs explicit tags and claims made by the
licensor bout what he owns, and what he does not own or is owned by others.
Thare are lots of things not covered by the licence and this is why the
redaction of the claims is important. Such claims may be really complex
(just look in the text of patents...), but the total absence of claim is
really abusive: you can't trust anything in the licence without a clear
understanding of what it covers.

For example when you licence a software in a package that includes a
decorated box, a CDROM and a booklet, the licence will cover only the
software, but not nevessarily all the software on the CDROM: some parts are
often not licenced such as the installer program. The decorated box, and the
booklet wil include artistic rights that are not covered by the licence. The
technology used to build the box, or the inks used to print it, or the
building process for the booklet, or the dye technology used to build and
burn the CDROM....

We DO need EXPLICIT claims of ownerships. The copyright notice is NOT an
option for software.