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

Henrik Ingo henrik.ingo at avoinelama.fi
Sat May 3 19:07:19 UTC 2014

That's an interesting angle to bite on...

Does the US government grant itself patents, and if so, what does it do
with those patents?
On 3 May 2014 06:45, "Richard Fontana" <fontana at sharpeleven.org> wrote:

> 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
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