Can OSI specify that public domain is open source?

[Rick Moen]

Quoting Chad Perrin (perrin at apotheon.com):

> I'd say, rather, that it should be conditionally recognized as open
> source -- under circumstances where it applies.  Otherwise, it looks to
> me like you're setting a precedent for crypto software distributed under
> the terms of an open source license should not be considered open source
> simply because some countries prohibit the use of (strong) crypto.

That boat sailed long ago.

A reasonable functional definition of 'open source software' is
'software concerning which any recipient can exercise all the rights
outlined in the Open Source Definition', OSD being an attempt to
formally detail the common-sense notion of what it means for a codebase
to be forkable, independently maintainable with the right to create and
distribute derivative works, and to use it without impediment for any
purpose.

If local law prevents you from exercising those rights concerning a
strong crypto codebase, then by a functional definition that codebase is
(locally) not open source, irrespective if licensing and irrespective of
source code availability.  Same principle applies for enforced patents
and other legal impediments.

If we'd have been holding this discussion before the RSA patent expired
just a bit over 11 years ago, I'd have said that mod_ssl was not open
source in the USA, irrespective of its BSD licence.  (I'd have footnoted
that, of course, like any self-respecting pedant.)