[License-review] Proposal for OSI Approval track: Modified MIT License for Public Domain software

Thu Apr 13 15:12:59 UTC 2017

A while back I reached out via your website's commenting form with a 
proposed OSI license for covering works that an individual would like to 
release into the Public Domain but still retain sufficient protections 
from legal action.  Deb Bryant responded but then I got distracted by a 
project and forgot about it.  I ran across an old reminder today and so 
I'm now starting the approval process.

Before I begin, I need to preface that I am not a lawyer.  However, I 
have an extensive understanding of Copyright, Patent, and Trademark law.

Without further ado, the OSI has a FAQ on its website and one of the 
questions and answers is about a OSI Public Domain license:

https://opensource.org/faq#public-domain

I perceive Copyright law with its protections of IP and legal protection 
from a wide variety of nasty lawsuits as being two extremely distinct 
things.  I view supposedly "Public [Domain?]" licenses like the WTFPL as 
absolutely reckless from a legal perspective, unnecessarily opening 
developers up to a wide variety of data loss, liability, and other 
lawsuits.  The WTFPL is an example of a Public Domain type of license 
done poorly (at best).  In the best interests of the larger community, I 
would like to see the OSI endeavor to back a Public Domain license that 
still protects developers.

For a project I worked on a few years ago, I needed a license that would 
excuse Copyright wherever possible while simultaneously offering the 
legal protections of other licenses.  None of the existing OSI licenses 
or license models particularly fit my needs.  So I started with the MIT 
license, an already OSI approved license, as a base.  At the time, I 
already utilized the MIT license extensively with my own software and 
knew it very well.  It was and still is a well-written document with 
strong legal defenses in a succinct package.  It is also the closest 
thing to a Public Domain license that OSI has to date.  All of those are 
highly desirable baseline attributes.

The following is what was carefully considered, documented and 
annotated, and eventually put into production:

-------
Modified MIT License for Public Domain software

Public Domain or legal equivalent
Original authorship by [authors] (the "Authors") in [year]

Permission is hereby granted, free of charge, to any person obtaining a 
copy of this software and associated documentation files (the 
"Software"), to deal in the Software without restriction, including 
without limitation the rights to use, copy, modify, merge, publish, 
distribute, sublicense, and/or sell copies of the Software, and to 
permit persons to whom the Software is furnished to do so.

THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS 
OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF 
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. 
IN NO EVENT SHALL THE AUTHORS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER 
LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING 
FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER 
DEALINGS IN THE SOFTWARE.
-------

There are three important differences from the MIT license:

1) The actual start of the license has been carefully altered.  I'll get 
into this momentarily.

2)  The requirement to include the license in all copies of the software 
has been removed since it isn't relevant in Public Domain scenarios. 
Anyone who might choose to remove the license takes on the associated 
legal responsibilities therein upon themselves (i.e. they still need to 
apply a license to protect themselves).

3) The phrase " OR COPYRIGHT HOLDERS" has been removed.  The list of 
authors should already include any relevant Copyright holders and are 
therefore already referenced with the parenthetical assignment '(the 
"Authors")' earlier on.  Those submitting patches to a project using 
this license should submit the above Public Domain license using their 
name(s) and year alongside each patch they submit so that their work is 
also clearly placed into the public domain.  Point #2 above applies here.

The most critical change is the first two lines of the actual license, 
so let's look at them closely:

"Public Domain or legal equivalent"

This line declares the software to be placed into the Public Domain OR a 
legal equivalent if one can be found/adopted OR the license text itself 
can act as a sufficient definition (i.e. the first of the two longer 
paragraphs).  The OSI FAQ says that it would take a long time to 
determine whether or not each locale has a sufficient Public Domain 
definition.  While I could be wrong about this, with an introduction 
line such as the above, the effort is not particularly necessary even if 
it could be useful.  Specifically, the phrase "or legal equivalent" may 
seem ambiguous but is actually carefully considered as the next 
paragraph of the license defines what the "legal equivalent" actually 
means if a sufficiently similar definition is unavailable in the locale 
in which it is read.

"Original authorship by [authors] (the "Authors") in [year]"

This line forms what may be perceived in some locales as a Copyright 
fallback position without using the legally entangling word "Copyright" 
or other legally-construed indicators (e.g. (C)) anywhere in the body of 
the text.  For locales offering Public Domain, the first line ends up 
taking precedence.  Otherwise, Copyright may be the only valid fallback 
position.  The assignment of a list of authors to the singular word 
"Authors" is useful in the license as it uses classic associativity to 
assign the list of authors for specific protection later on (i.e. 
"AUTHORS" in the second of the two longer paragraphs).

The license itself clarifies the intentions of the author(s) in regards 
to their hold on Copyright.  Even if Copyright still applies, 
attribution is included with the license to indicate who the Copyright 
claimants actually are and then direct subsequent release from all 
possible claims.  Someone with intention to place their software into 
the Public Domain has no plans to ever claim ownership of Copyright over 
the work in the first place.  At the same time, the full body of text of 
the license protects the author(s) from damaging lawsuits, which I 
consider to be of greater significance.

Legal review:  This license has NOT been reviewed by legal counsel. 
However, it is strongly in line with at least one existing OSI approved 
license.  If there is something specific I must do here as the promoter 
of this license, let me know.

Proliferation categories:  There are two proliferation categories that 
the license may fit into - Special purpose licenses OR 
Other/Miscellaneous licenses.

Additional, somewhat less formal commentary on this license and its text 
is available in a post I wrote in March 2014:

http://cubicspot.blogspot.com/2014/03/writing-software-without-copyright.html

It may offer additional insight and it is possible that I overlooked 
something in my e-mail to this group that I covered there.

I realize this is a lengthy e-mail.  Thank you for taking the time to 
read it and your consideration of this license, or one like it, for the 
Approval track.

-- 
Thomas Hruska
CubicleSoft President

I've got great, time saving software that you will find useful.

http://cubiclesoft.com/