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

[Richard Fontana]

On Sat, 03 May 2014 14:00:53 -0500
Karl Fogel <kfogel at red-bean.com> wrote:

> Richard Fontana <fontana at sharpeleven.org> writes:
 
> >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.
> 
> The patent issue would apply just as much if it were MIT- or
> BSD-licensed, though, and we'd call it "open source" then, right?

Unless perhaps the situation -- a statute that says that US government
works are in the copyright public domain, with no counterpart provision
in the Patent Act -- is more akin to CC0, and depending on whether you'd
call CC0-covered source code "open source". 
 
> http://www.cendi.gov/publications/04-8copyright.html#317 seems to
> indicate that we'd need an explicit notice that the U.S. government
> will not claim any copyright on the work in jurisdictions outside the
> U.S.
> 
> If the US government were to publish such notice on a given work --
> say, if standardized language for doing so were approved by the
> OSI :-) -- then would there be any sense in which the work would not
> be compliant with the OSD?  E.g., would its open-sourceness be
> materially different from an MIT-licensed work?

When the MXM license was considered, some people pointed to OSD #7 as
suggesting that a sufficiently narrowly-drawn patent license grant in
a license would not be Open Source. This was the problem I raised when CC0 was
submitted. It was the inconsistency. It depends on your view of how the
OSD applies to patents. 

- RF