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

[Rick Moen]

Quoting Thomas Hruska (thruska at cubiclesoft.com):

> On 5/29/2017 9:46 AM, Rick Moen wrote:
> >Thomas, your licence purports to contribute covered software into the
> >public domain, but then purports to require recipients to accept the
> >"Releasors'" condition of there being no warranty.  But if it's public
> >domain, then the Releasors have no power to impose such a condition:
> >If your licence succeeds at its aim, they no longer have an ownership
> >interest.
> 
> If it is public domain, as intended, then there is no one to sue for
> warranty liability in the first place since there is no ownership.

Clearly there would in that hypothetical (by definition) no longer be a 
copyright ownership interest, but your conclusion that eradicating
ownership interest also erases warranty liability doesn't actually follow.

(Thomas, you say you've studied licences and software law for a long
time, and I'm doing the courtesy of taking that as given.  I would
appreciate if you would extend a similar courtesy as a starting point
for discussion.  Both of us making that assumption will, I hope, reduce
the need to recap basics.)


> >Of course, commendably, your licence acknowledges that it might fail of
> >its primary aim (perhaps in some jurisdictions if not in others).  Like
> >CC0, you thus aim to have a fallback, what you term an 'agreement'.  But
> >the basis of that agreement is actually the Releasor's copyright
> >interest, which you tortuously avoid mentioning by name as if that made
> >it go away.  You cannot magick away copyright by avoiding the word.
> 
> Quite true.  However, simply saying the word copyright always throws
> a monkey wrench into the works.

Again, you draw this conclusion, but it doesn't visibly follow from
your premises.  

And, no, I would say it very much doesn't.  For someone to grant rights
or condition that grant on acceptance of conditions such as warranty
waiver, it is useful and necessary to state the basis of the grant.
Look at this from the perspective of a codebase recipient, please.  The
code instance has an attached statement puporting to (alternatively)
declare either that the work has been contributed into the public domain
or that someone grants a MIT-like set of rights conditioned on warranty
disclaimer, which is all well and good, but who is this someone, and on
what basis is the grant meaningful?  

You go out of your way to have this someone identify himself/herself as
a 'Releasor' making this declaration on a particular date.  By what
right is this someone able to speak meaningfully concerning the work?  

MIT License declares that basis correctly:  It states that the licensor
speaks on the basis of copyright ownership that arose during a declared
year, thus permitting all recipients to operate in good-faith reliance
on a reasonably declared permission grant from a reasonably identified 
stakeholder whose interest will expire in future year $COPYRIGHT_YEAR + n,
copyright term extensions permitting.

Even a successful public domain declaration (if there are any, and there
are good reasons to believe them to have no effect in some identified
jurisdictions at least) starts with a proper identification of the
copyright holder and the year his/her interest arose -- and then does
whatever suffices to eradicate that ownership interest.  It does not
start with carefully avoiding mention of that interest.

> Avoidance was a reasonable strategy not to magically get rid of
> copyright but make it easier to work around. Maybe it's not a viable
> strategy, but certainly reasonable.  (CC0's length and verbosity is a
> testament to that monkey wrench.)

In my view, CC0's length and verbosity are a testament to the drafters
having taken their responsibilities seriously.  More to the immediate
point, so did the drafters of MIT License.  And my point is that there
are exceptionally compelling reasons why it and all similar licences 
(and for that matter, PD declarations) should and do start with an
identification of the owner and the year of his/her ownership interest.
Omitting that is IMO actively harmful to recipients -- and to your aims.

> Maybe one day the relevant laws will change to favor public domain
> dedications for the betterment of society as a whole.  Of course, if
> that ever happens, the solution will thus plainly present itself.
> This proposal is perhaps a bit ahead of its time.

Well said.  To be clear, I think it would be a fine and good thing for
it to be easy and effective to place software works by fiat into the
public domain.  To my knowledge, CC0 is the best-drafted attempt to
provide an instrument for that purpose, and primarily because of the
fallback permissive licence provided inline.   (To be clear, many people
would deem a PD dedication successful even if ownership interest has not
technically been eradicated provided the result is functionally similar,
such as existence of a global, irrevocable licence to use the work for
any purpose.)