[License-review] OSI, legal conditions outside the "four corners" of the license, and PD/CC 0 [was Re: Can OSI specify that public domain is open source?]

Chad Perrin perrin at apotheon.com
Wed Jan 4 05:26:59 UTC 2012

On Tue, Jan 03, 2012 at 12:09:47PM -0800, Rick Moen wrote:
> 2011:  'We wanted out of the copyright game, but were unsure how it
> could effectively be done in practice.'[1]  Guess what?  There's a
> worldwide default-copyright regime, opting out of it is simply
> problematic, and attempts to do so risk creating non-deterministic
> effects that depend on the jurisdiction and judge.
> And that's the pity of it:  Using a very simple standard permissive
> licence such as MIT/X11 License

I agree that a simple license is generally better than a layered fallback
on top of an attempt to disclaim copyright, but that is not the same as
saying that a layered fallback on top of an attempt to disclaim copyright
is not "open source".

> Since we're talking about Unlicense, let's go on a bit:
> Paragraph (and sentence) #1 professes to put the covered work into the
> public domain.  As mentioned, paragraph 2 professes to be a grant of
> rights normally reserved by default to a copyright owner, which makes no
> sense given that the preceding sentence professed to eradicate the
> work's quality of being ownable.  _However_ (upon reflection), in itself
> that would be harmless if redundant and pointless:  One can interpret
> paragraph 2 as an elaboration of the consequences of the first
> paragraph.

I don't think the point is to try to establish a license after
disclaiming copyright, exactly.  Rather, I think the intent is to offer
license terms should the public domain dedication legally fail for a
given jurisdiction.

> Paragraph 3 is mostly further explanation of the concept of public
> domain, and therefore harmless if not useful.  Its middle sentence 
> elaborates that the erstwhile author aims to bind heirs and successors,
> too (which is a logical inclusion, irrespective of whether it works).
> Paragraph 4, though, is the one that would be amusing if it weren't
> tragically broken:  It's the warranty disclaimer.  People accepting the
> covered work are obliged to accept the condition of no warranty,
> otherwise there is no licence.  Except, oh, wait:  Paragraph 1 professed
> to put the work in the public domain, so the erstwhile owner has sawed
> off and evaporated in paragraph 1 all power to require the condition in
> paragraph 4.

If public domain dedication fails, and license terms apply instead, the
warranty is still valid.  Right?  I think, again, the point was not to
dedicate something to the public domain then try to impose license terms,
but to impose license terms only if the public domain dedication failed.

I have not talked to the author of the Unlicense about this (or at all,
to my recollection), but that appears to be the obvious intent from where
I'm sitting.

Chad Perrin [ original content licensed OWL: http://owl.apotheon.org ]

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