Can OSI specify that public domain is open source?

[Rick Moen]

I am snipping licence-review at opensource.org from distribution, as this
discussion strikes me as outside that mailing list's charter.


Quoting Karl Fogel (kfogel at red-bean.com):

> I'd like to work some material onto our web site confirming that
> software in the public domain (in the copyright-related sense used in
> the United States, which we would make clear) is open source.

1.  There would be no harm in OSI stating that public domain software
works (that are available in source code form and are not encumbered by
enforced patents or other legal problems) are open source (in
jurisdictions where the work actually is public domain), as that
statement is tautologically true.  It is also _obviously_ true by the
essential definition of that legal concept (again, assuming source code
access and lack of patent or other legal problems); so, there's not a
lot of point in OSI saying it.

However...

OSI doesn't certify _any_ software as open source.  There's a reason for
that.  OSI is rarely if ever in any position to determine the
surrounding circumstances of a software work that -- along with the
(professed) copyright owner's licence -- determine whether the work is
actually public domain.

Here's an experiment:  You, Karl Fogel, write a modest C program and put
up a Web site about it.  You post binaries, and proclaim them to be
under the MIT X licence.  Is that open source?  It's software of which
an instance has been lawfully issued by its copyright owner under an OSI
Certified licence, by, no, it's not open source for lack of source code.

OK, so you post source code.  Now it is (apparently) open source.
However, a week later, it emrges that you have a US patent covering the
C program's methods, and require some fairly heinous terms for a patent
licence.  Now, even with the source code, recipients are not capable of 
exercising their MIX X rights without paying a royalty, hence OSD #1 is 
not observed desipite the MIT X licence terms.

You relent and permit royalty-free exercise of the patented method.
Open source again (apparently).  However, the world learns a week later
that you failed to mention having lost legal ownership of all your
copyrights in [insert your choice of calamity here:  divorce,
bankruptcy, legal settlement].  Hence, you weren't the real copyright
owner; hence, your licensing had no legal effect.

You buy your copyrights back from your ex-wife:  open source, again.
Except, it turns out that this entire category of software may not be
lawfully distributed in Uzbekistan.  Is it open source in Tashkent?
Nope, not if OSD #1's rights cannot be lawfully exercised.

So, in short, OSI has good reasons for not certifying _any_ software as
open source, and sticking to certifying of licences.


2.  There's a difference between verifiably public domain software works 
such as VistA (https://secure.wikimedia.org/wikipedia/en/wiki/VistA [1])
and 'I the author profess to disclaim all ownership rights' works such
as ones with a CC0 declaration.  Furthermore, to be quite frank, that
distinction and pretty much all legal concerns are lost on typical
proponents of 'public domain software' as a licensing category:  In my
experience, they basically just dislike copyright law and want to magic
it away.  As the Dread Pirate Roberts said:  'Get used to disappointment'.

The Creative Commons operators have done a public spirited thing in
writing CC0, but you will note that they warn that (1) it may not have
the intended effect in all jurisdictions, (2) it may not work at
all, and (3) it might in some jurisdictions fail to have the effect of
expunging any ownable copyright title (public domain) but still manage
to effectively disclaim substantive ownership rights, which is the next
best thing.

> But I've seen this point cause confusion on a number of lists now,
> including some that matter, and we should just put it to bed.

Useful exercise:  Attempt to write such a text that would 'put the
matter to bed' and properly cover the above points.  Even if you
succeed, your effort will be futile, because the people who want to
magic copyright law away won't even read it.

I _did_ write such a text (well, it sort of grew over time), and think
it covers matters pretty well albeit at excessive length, but the 'I
want copyright law to go away' people predictably don't heed it.
http://linuxmafia.com/faq/Licensing_and_Law/public-domain.html


[1] Note that even VistA isn't necessarily public domain in other
countries outside the USA.