[License-review] CC withdrawl of CC0 from OSI process

[Karl Fogel]

Christopher Allan Webber <cwebber at creativecommons.org> writes:
>I'm feeling pretty informal after sending out that more formal email, so
>let me put on my not-work-free-software-activist hat, without taking the
>effort to switch email addresses.  Pretend I sent this from
>cwebber at dustycloud.org, or something.
>
>Basically, for the universe I wish existed, I think it's a shame that
>CC0 didn't finish the OSI process, but for the universe that exists,
>it probably makes sense.  And I kind of hope CC0 for software doesn't
>totally drop.  But it would also be good if this conversation that
>happened here does more than just drop CC0 1.0 on the OSI floor, and
>something significant comes out of this
>much-longer-than-I-think-anyone-expected conversation.  I for one did
>think this was an "open and shut case", as I think some other people
>said.  But it turns out I was wrong.  What's the lessons to be learned
>from this?  Not sure yet.  But I hope something comes out of it.

+1 on all counts, Christopher.

Thanks very much for your patience as this thread wound its unexpected
course.  I too thought it was basically an open and shut case, but the
more I saw of some of the legal points being made (significantly, by
experienced FOSS lawyers) the less comfortable I was with the odd patent
position the license portion might put a recipient in.

I'm going to try to come up with a good answer for the OSI FAQ on the
public domain and open source, and in it both summarize and point to
this thread as an example of how the issue is not as simple as we all
wish it would be.

I would also note that even though CC has withdrawn the license from
submission, that does not formally preclude the OSI from continuing to
consider it, and from bringing in more concentrated legal resources to
investigate how much of a problem 4a really is.  The discussion here has
revealed that there are issues that need careful looking into -- that
this can't be a simple approval process.  IMHO, however, the discussion
has *not* revealed with certainty that CC0 is not approvable.  The
points Carl Boettiger raises in his email (link quoted below) are good
ones.

Best,
-Karl

>I also think Carl Boettiger wrote a beautiful email here:
>  http://projects.opensource.org/pipermail/license-review/2012-February/000230.html
>and it raises interesting points, and I hope that conversation
>continues, even though CC has withdrawn CC0 formally from this process.
>
>Related to the statements in Carl's email about legal tools that span
>domains, and your statement below of making CC 4.0 software friendly,
>what I can say is I am trying.  Indeed, aside from my primary duties of
>making CC's infrastructure and external developer tools and metadata
>goals all work and everything that's actually written as part of my
>dayjob, my not so secret agenda while working here is to do as much as
>possible to bridge the free and open source software and CC/free culture
>gap(s).  To that end, and specifically around 4.0, you may enjoy:
>
>  http://wiki.creativecommons.org/4.0/Games_3d_printing_and_functional_content
>
>and the possible GPL compatibility discussion here:
>
>  http://lists.ibiblio.org/pipermail/cc-community/2012-February/006888.html
>  http://lists.ibiblio.org/pipermail/cc-community/2012-February/006895.html
>  (and also a billion emails on the subject from the January 2012
>  archives, but I'll leave pulling those up as an excercise for the reader)
>
>... but if that sort of thing interests you, and you care about this, I
>highly encourage anyone and everyone on this list to get actively
>involved in the CC 4.0 process:
>
>  http://wiki.creativecommons.org/4.0
>
>and subscribe to:
>  http://lists.ibiblio.org/mailman/listinfo/cc-licenses
>  http://lists.ibiblio.org/mailman/listinfo/cc-community
>
>Anyway, if you're worried about CC and FOSS concerns, that's something I
>am constantly thinking about and trying to put on CC's agenda, to the
>extent I can make excuses to do it.  Always happy to hear what people
>have to say on it, if you want to reach out to me about it whenever.
>
> - Chris
>
>PS: We will be making an adjustment to the CC0 FAQ on Monday... it's
>already written, actualy.  It won't make a statement deprecating the
>possible use of CC0 for software and will mostly remain the same, but
>will have a note at the bottom noting that CC0 is not OSI approved.  We
>figured that was a good compromise solution.
>
>
>"Tzeng, Nigel H." <Nigel.Tzeng at jhuapl.edu> writes:
>
>> Christopher,
>>
>> There's no need in my mind to change the license.  Being able to release
>> CC0 code alongside CC0 data is a useful thing for the science community
>> and open source.  I hope that you do not change the FAQ nor deprecate the
>> use of CC0 for software.
>>
>> I know you're in the absurd position of being courted to submit CC0 to the
>> OSI and then being told, well, gee we don't know if this is such a good
>> idea maybe you should change it even though the FSF has already approved
>> it so most folks would think this is a no brainer.
>>
>> This experience certainly has been informative.
>>
>> Can you guys make CC 4.0 software friendly please?  Pretty please?
>>
>> Thanks,
>>
>> Nigel
>>
>> On 2/24/12 5:20 PM, "Christopher Allan Webber"
>> <cwebber at creativecommons.org> wrote:
>>
>>>Hello all,
>>>
>>>We've discussed this internally, and unfortunately we agree that it's
>>>best to withdraw CC0 from the OSI review process at this time.  There
>>>have been several issues raised around the language declaring patents
>>>out of scope in the tool (that they weaken equitable estoppel defenses
>>>against patents or that they heighten risk by putting someone "on
>>>notice" about patent risks in the associated code).
>>>
>>>There have been questions about why that lanugage is there.  First of
>>>all, speculation that we did not anticipate CC0 usage for software at
>>>the time is true.  The patent language that exists comes out of
>>>conversations with the scientific data community, whom were a large
>>>target of adoption for the tool.  This community felt strongly that
>>>there was a need to clearly waive something into the public domain
>>>without also waiving patents in the process.  Hence the language.
>>>
>>>It has been suggested that CC simply remove this text from the CC0
>>>legalcode.  This would of course require releasing a new version, as
>>>we can't change the 1.0 legalcode once it has been released.
>>>Unfortunately, even doing a small versioning of something with as
>>>straightforward of an action as this is not as simple as it might
>>>sound.  First of all, releasing a new version of a legal tool,
>>>including CC0, requires a large conversation between many parties and
>>>experts, and thus inevitably is not a quick task.  On top of this, the
>>>CC 4.0 process is in full swing, and there is not enough bandwidth
>>>within the organization to do a CC0 revisioning at the same time.
>>>Thus, beginning the process for a new version of CC0 would have to
>>>wait until CC 4.0 is out, which means that won't start until at
>>>least 2013.
>>>
>>>That said, this experience has certainly been informative, and will be
>>>taken into consideration in possible future CC0 versioning, should
>>>that happen.
>>>
>>> - Christopher Allan Webber and Creative Commons
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>>
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