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

Sun May 4 19:53:11 UTC 2014

Richard,

I just wanted to call out a neat statistical trick you just made:

On Sun, May 4, 2014 at 9:06 PM, Richard Fontana <fontana at sharpeleven.org> wrote:
> On Sun, 04 May 2014 11:48:13 -0500
> Karl Fogel <kfogel at red-bean.com> wrote:
> I don't know offhand the current count of OSI-approved licenses but I
> think it is around 70. In a typical traditional server/desktop Linux
> distro, the numbers of distinct licenses regarded *reasonably* by the
> communities of users and distributors of that distro as "open
> source" must number at least in the several hundreds. (Think of
> the universe of licenses covering packages considered
> DFSG-conformant in Debian, since the criteria are at least superficially
> very similar to the OSD, its descendant.)

Sure. But it isn't at bad as you make it sound. The above sounds like
more than half of the licenses in Debian (as an example of the distro
with most packages) are not OSI certified. At the same time, Debian
has over 37k packages and what stats we have from blackduck and other
sources make me comfortable in guessing that safely more than 99% and
probably more than 99,9% of Debian packages do use an OSI certified
license. From this point of view I'd say we are doing very well here.

I obviously agree that it is important that reality and OSI converge,
but at the same time it serves no useful purpose to spend time
certifying things like GPLv1.

>> ...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.
>
> I'm going to out myself here and say that I believe CC0 is obviously
> lowercase-o, lowercase-s open source despite the clause about patents.
> That doesn't mean the OSI should have approved it, that doesn't mean
> the OSI should recommend its use in its current form or cease its
> current practice of recommending against its use. I have a similar view
> of US government public domain works (with the added problem that it is
> clear that many intellectual property lawyers working across different
> US government agencies are confused over what 17 USC 105 means).
>
> Yes, US works that are public domain worldwide are obviously open
> source, but as with CC0 this has some implications for how licenses that
> explicitly mention disposition of patent rights should be treated.

Is the US governments exclusion of patents that explicit? I mean I
don't contest it as a fact, but to a layman I don't expect legislation
to be coherent or 100% intentional. Politics to me seems much more
like a one hand giveth, one taketh away kind of situation. Kind of
like the discussion whether the US government works truly are
worldwide public domain or just "except for all the other countries
but US" public domain. It's messy reality and there's nothing we can
do about it. (Another analogue: do software patents exist in Europe or
not? That's a good ice breaker for conversation, but I wouldn't want
OSI to assume "no" as the correct answer for purposes of certifying
licenses.)

CC0 otoh had an explicit sentence excluding patent rights, that to me
seems much more problematic.

As we are going on the record then, I see a distinction between CC0
being intentionally wrong and US public domain works just being an
imperfect legal construct.

John keeps asking for statements like above to always be based on
specific OSD paragraphs. Maybe that's a good idea. I'll try to express
my judgement of CC0:

The patent clause in CC0 fails in OSD compliance because:

§1: it explicitly reserves the right to restrict some party or any
party from selling, giving away and redistributing, now or at a future
time. It also explicitly reserves the right to ask for royalties for
such sale or redistribtuion.

§5 and §6: even if the license text itself is neutral, it reserves the
right for the licensor to discriminate between recipients of the
license such as prohibiting some recipients from using or
redistributing the software, or requiring royalties for some type of
use or users. For example separating commercial/non-commercial,
geographically or just tactically or even arbitrarily. I should note
that this would be a very likely way of enforcing ones patent rights.

§7: excluding a patent grant fails the intent of this paragraph,
though technically the rights actually included in CC0 do satisfy this
paragraph.

§8 and §10: I see similar risks here: it is likely that a patent
holder could enforce patents in a way that fail to meet the intent of
these paragraphs, even if the license text otherwise is neutral here.

henrik

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