[License-discuss] Can OSI take stance that U.S. public domain is open source?

[John Cowan]

Karl Fogel scripsit:

> After all, the *definition* of "open source" is supposed to be just
> "whatever complies with the OSD".  And our certification process is
> also "Does this comply with the OSD?"...  So the two shouldn't diverge;
> to the extent that they do, we have a problem.

Actually, that's only part of our process.  We also are supposed to
"discourage vanity and duplicative licenses".  We have neither the
resources nor the desire (I think) to certify all the unique licenses
that companies have cooked up for their products, to say nothing of all
the skrillions of BSD and MPL variants out there.  So I think the two
must and should diverge: arse [sic] longa, vita brevis.

What is more, we don't certify a license unless the license steward
asks us to.  When I proposed that the MSPL be certified, the request
was (rightly) rejected, because I am not the steward; later, the actual
steward did request it and it was certified.  At neither time did anyone
say the license was not open-source.

In the end, certification is just a convenience to the users: it says
that a group of fairly knowledgeable people are willing to stand behind
the cliam that each certified license conforms to the OSD.  We don't
and can't claim to have a comprehensive list.  We know that uncertified
but compliant licenses are Out There, and new ones can and will appear
indefinitely.

> But in the long run I think we have two mutually exclusive choices:
> 
>   1) Have licenses out in the world that are OSD-compliant, and that we
>      informally agree are "open source", but that we don't certify.

This is not a choice, it's an accomplished fact.

>      This will cause growing divergence between "what is open source"
>      and "what the OSI has approved".  That would be very, very bad.

Bad or not, it is inevitable.

>   2) Officially certify any license (or PD status / PD dedication) that
>      is OSD-compliant as open source, but for most of them attach
>      commentary explaining why most people probably shouldn't use it and
>      why one should one of the popular licenses instead.

That would be a return to our original process, when we tried to do
just that.  Not only did we fail, we got substantial pushback that
what we were doing is not what users needed, so we adopted our current,
more conservative process.

> I completely agree, by the way, that we can be active about requiring
> certain kinds of patent promises.  E.g., maybe we wouldn't certify PD
> itself for software works, but would certify PD *when accompanied by* a
> particular patent non-assertion text.  

Unless you can show how a failure to mention patents, or even a completely
adverse mention of them ("no patent rights whatsoever") contravenes the
OSD, this position contradicts your above position of "certify anything
that conforms".  You can't have it both ways.

-- 
John Cowan          http://www.ccil.org/~cowan        cowan at ccil.org
The peculiar excellence of comedy is its excellent fooling, and Aristophanes's
claim to immortality is based upon one title only: he was a master maker
of comedy, he could fool excellently.  Here Gilbert stands side by side
with him.  He, too, could write the most admirable nonsense.  There has
never been better fooling than his, and a comparison with him carries
nothing derogatory to the great Athenian. --Edith Hamilton, The Greek Way