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

[Thomas Hruska]

On 4/13/2017 8:56 PM, Thomas Hruska wrote:
> On 4/13/2017 10:02 AM, Richard Fontana wrote:
>> On Thu, Apr 13, 2017 at 08:12:59AM -0700, Thomas Hruska wrote:
>>> For a project I worked on a few years ago, I needed a license that would

Somehow I missed getting the reply from McCoy Smith:

https://lists.opensource.org/pipermail/license-review/2017-April/003034.html


 >>Some comments on your comments below.<<

 >>The current draft just says " Public Domain or legal equivalent " 
Have you confirmed that that statement is legally effective to result in 
a dedication to the public domain?<<

The blog post addressed this.  It will depend highly on the locale.  The 
first paragraph of the license deals with locales in which such a 
statement does not apply and may clarify/reiterate what Public Domain 
means even in those that do.


 >>I know CC did a lot of work and research into how (in many 
jurisdictions) one goes about making a legally effective public domain 
dedication, and the wording they use in CC0 is much more comprehensive 
in the language it uses (in Sec. 2).  The language you use is quite 
brief and I'm curious if that's all that's required in the jurisdictions 
that allow public domain dedications.<<

CC0 is concerning to me.  The preamble and Section 1 proceed to define 
and claim copyright protections with limitations.  Doing so may void the 
rest of the license in its entirety.  Particularly Section 4a may void 
CC0 at the starting gate as patents and trademarks are frequently 
intertwined with copyright and it is likely impossible to extricate one 
from the other.  It may be inferrable that since 4a withholds patents 
and trademarks that Sections 2 and 3 could be subsequently void.  In 
such a case, the licensee is left with what amounts to an affirmation of 
copyright and trademark/patent law with some personal desires in the 
preamble but no actual permissions conferred.  CC0 is also designed for 
a wide range of works, not focused solely on software and may not 
actually be suitable for software even though the FSF has approved it 
(e.g. no rules regarding modifications and possibly restricts sublicensing).

Moral rights may appear to be pertinent but only Europe cares, 
particularly France.  They can't be waived in Europe and no one else 
generally enforces them, so CC0's attempt to waive them is rather 
pointless and the fallback will be in effect.

Reading CC0 formally shows there could also be problems where successors 
and/or abandoned/unclaimed property are concerned in the draft of the 
license I originally submitted.

I propose adding "in perpetuity" to the draft.  CC0 goes to great 
lengths to spell out that the rules governing the license are intended 
to be for all time and may not be revoked.  The word "perpetuity" is a 
nice clean summary of all of the CC0's wordiness.


 >>I didn't see the phrase "for any purpose" in the text of the license 
you submitted.  You might want to update the draft to include that if 
that is intended (and if it is an addition to the license grant, explain 
how that phraseology makes a difference to the "without restriction" 
language already in MIT.<<

The FPL has it, MIT does not.  The phrase in MIT of "deal in the 
Software without restriction" is NOT the same thing as FPL's "Permission 
to use...for any purpose".  I perceive the wording in FPL as opening up 
the possibility of lawsuits while the wording in the MIT license does 
not.  Sorry for any confusion.


 >>I think you need to be careful in using the term "author" in this 
license (although I think you believe it not to be a license, although 
that's not clear to me, and given the way that CC0 is structured, I'd 
think you'd want a back up license); that's a term of art in copyright 
law (as well as in the US Constitution) and by using that terminology, 
you might be preserving an argument that it does indeed preserve some 
copyright rights or does not act as a complete public domain dedication. 
  CC0 uses "affirmer."<<

It is most definitely a license.  I'm not sure why you think that I 
think it isn't.

At any rate, in looking at your concern here, I'm in agreement.  To that 
end and considering various options, "Released by" and "Releasors" are 
better terms with less likelihood for confusion with any existing 
frameworks.


With the above adjustments, the new draft is thus:

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

Public Domain or legal equivalent
Released by [authors] (the "Releasors") in [year]

Permission is hereby granted in perpetuity, 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 RELEASORS 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.
------

Also updated here:

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

-- 
Thomas Hruska
CubicleSoft President

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

http://cubiclesoft.com/