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

Karl Fogel kfogel at red-bean.com
Sun May 4 16:48:13 UTC 2014

John Cowan <cowan at mercury.ccil.org> writes:
>I continue to think that our CC0 decision was wrong insofar as it can
>be read as saying that the CC0 license is not an open-source (as opposed
>to OSI Certified) license.  There may be reasons not to certify it,
>but not to deny that it is open source.

[warning: long]

IMHO it would be a long-term problem for the OSI (and for open source in
general, given the useful standardization/certification role OSI plays)
to have there be licenses that we call "open source" but don't certify.

After all, the *definition* of "open source" is supposed to be just
"whatever complies with the OSD".  And our certification process is also
"Does this comply with the OSD?"...  So the two shouldn't diverge; to
the extent that they do, we have a problem.

The distinction we are being pushed toward, I think, is the subset of
open source licenses (that is, OSD-compliant licenses) that the OSI
would *recommend* for use.  Er, if we did recommending :-).  Right now,
we don't, officially.  We're edging into it warily, though, with the
rearrangement of the http://opensource.org/licenses/ page, which starts
off with the "Popular Licenses" section.

This is not a criticism, by the way.  Such tentative steps are the right
way to get there.  But in the long run I think we have two mutually
exclusive choices:

  1) Have licenses out in the world that are OSD-compliant, and that we
     informally agree are "open source", but that we don't certify.
     This will cause growing divergence between "what is open source"
     and "what the OSI has approved".  That would be very, very bad.

  2) Officially certify any license (or PD status / PD dedication) that
     is OSD-compliant as open source, but for most of them attach
     commentary explaining why most people probably shouldn't use it and
     why one should one of the popular licenses instead.

(1) is a disaster.  It will defeat much of the point of the OSI, in the
long run.

We're sort of doing the complement of (2) right now, with the "Popular
Licenses" section.  Whether it's useful to limit ourselves to labeling
some licenses preferable, or should do the other side as well and label
other licenses as "yeah, it's open source, but we don't recommend using
it for new code unless you have no choice" is, of course, a complicated
political question.  We don't need to resolve it in this thread...

...but I think we do need to come to some sort of solution soon.  The
U.S. government is going to keep releasing what is (obviously) open
source software into the public domain; CC0 is also becoming more
popular in non-software works and will inevitably make inroads into
software too.

These works are all basically OSD-compliant, and will be treated by
people as open source.  If we don't find some way to incorporate those
terms into our certification process, it's the certification mark that
will be hurt in the long run, not the licenses / PD statuses.  That's
why I'm so worried by threads like that one I saw on GitHub that started
this.  Those folks are crying out for us to provide clarity, even if
they don't know it yet :-), and we must find a way to do so.

I completely agree, by the way, that we can be active about requiring
certain kinds of patent promises.  E.g., maybe we wouldn't certify PD
itself for software works, but would certify PD *when accompanied by* a
particular patent non-assertion text.  We'd have a lot of leverage to do
so, given that refusing to make that non-assertion promise, when asked
for it, would draw attention to the fact that the party has now publicly
decided not to be open source enough for the OSI.  So I'm not saying we
should just certify PD and CC0 and be done with it -- it's more complex
than that.

But the current limbo is not stable, and will inevitably damage the
remarkable unanimity we currently have around OSI certification.  We'll
have to solve this, probably sooner rather than later.


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