[License-discuss] Can OSI take stance that U.S. public domain is open source?

[Richard Fontana]

On Fri, 02 May 2014 14:55:55 -0500
Karl Fogel <kfogel at red-bean.com> wrote:

> This thread on GitHub gets (needlessly?) complicated.  It's about a
> public-domain software work put out by the U.S. government, and
> there's no clarity on whether calling it "open source" and citing the
> OSI's definition of the term would be appropriate:
> 
>   https://github.com/ngageoint/geoevents/issues/2#issuecomment-41739913
> 
> Someone cites our FAQ item on it (which, as its primary author, I
> found tickled my vanity :-) ), but really, I wish they didn't have to
> cite the OSI FAQ and could instead just say "yup, public domain is
> open source".
> 
> The things we don't like about public domain (lack of explicit
> liability limitation, different definitions in different
> jurisdictions) are not in themselves counter to the OSD, after all.
> 
> Thoughts?  Should OSI look for a route to say that public domain works
> (like ones put out by the U.S. government) are open source too, or is
> it just too problematic?

This work's authors seem to explicitly say that they are dedicating it
to the public domain, not merely (or explicitly at all, as far as
I can see here) relying on the notion of statutory public domain for
US government works. I'd argue those are two different concepts of
"public domain" (one of which is really something more akin to the
effect achieved by CC0). 

With statutory public domain works, you can't be sure out of context
what the status of the work is when published outside the US. See e.g.
http://www.cendi.gov/publications/04-8copyright.html#317. I've found
that many US government lawyers dealing with open source seem to assume
that 17 USC 105 operates worldwide (this sometimes comes up in the form
of a refusal to sign CLAs because 'there is no copyright to license').

Also with statutory public domain works you have the same old MXM/CC0
inconsistency problem in a different form. Consider the case of public
domain source code created by a US government employee, having features
covered by a patent held by the US government.

 - RF