Can OSI specify that public domain is open source?

[Chad Perrin]

On Wed, Sep 07, 2011 at 03:31:11PM -0400, John Cowan wrote:
> Karl Fogel scripsit:
> >
> > When U.S. Government employees write software on government time, it
> > is public domain by law; they need make no disclaimer of rights, it's
> > just automatically so.
> 
> In the U.S., yes, but users of such software outside the U.S. are
> technical infringers.  See the NASA Open Source License, which exists to
> deal with that possibility.

I'm in favor of a brief overview of the kinds of problems that apply to
the public domain appearing somewhere on the OSI site, including a
statement to the effect that a work in the public domain can be open
source software within the restrictions imposed by those problems.  I'm
not in favor of saying that public domain works are open source, full
stop, in any context.

Any notice that public domain works (might) qualify as open source
software should point out that there are limitations and legal problems.


> 
> What's more, if you modify a public domain program, the modified version
> bears your copyright (even if not marked as such), and the result is
> fully proprietary unless you give it a license.  Some of the code in the
> self-declared public domain Olson TZ database, to say nothing of the
> database itself, is quite shaky in this respect:  Arthur David Olson is
> a federal employee, but the current maintainer, Paul Eggert, works for
> the State of California (assuming I have not conflated two different
> Paul Eggerts here).

As I understand things, there is no particular requirement for an open
source license to be non-removable to meet the standards of the OSD.  If
we assume for the moment that the public domain can be applied to a work
without issues, the fact a derived or modified work can be licensed
differently does not make it less "open source", as far as I'm aware, and
the same could be said for an open source license that includes a clause
that allows relicensing (such as the WTFPL).  Am I mistaken?

Back in the real world, though, there *are* problems with the public
domain.  That's a somewhat different issue than whether the public domain
would qualify as open source just because a modified or derived work can
be (re)licensed.

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