[License-review] Submitting CC0 for OSI approval

Henrik Ingo henrik.ingo at avoinelama.fi
Sat Feb 18 22:35:36 UTC 2012

Dear all

This is the first time I participate in a license review. I'm
understanding that by being a member of this mailing list, and perhaps
also due to being a long time activist in various open source
projects/products, I'm competent to voice my opinion. If this is a
misunderstanding on my part, then please ignore this mail.

While I understand there is perhaps some pressure to accept the CC0
document, especially as Creative Commons was invited to submit it, and
while I understand that many have already "+1" it...

I share the concern or Mr Fontana that this text is not desirable for
an open source license, and not within the spirit of paragraph 7 of
the OSD, and at least my common sense expectations of what open source
licenses should provide for:

4a) No trademark or patent rights held by Affirmer are waived,
abandoned, surrendered, licensed or otherwise affected by this

Without further clarification from Creative Commons, or perhaps a
willingness from them to edit this license, I am not supporting its
acceptance as an open source license.

Following argument and counter-argument was made:

>> Let's consider that *most* OSI approved licenses actually effectively
>> are the same, but without explicit statement.  Patent provisions are out
>> of scope of MIT, BSD, and almost every non-apache non-*GPL license tool.
> The case has been made (and also denied) that the use of the word "use"
> in the MIT and BSD licenses is an implied patent grant, as "use" is one
> of the Yang Worship Words of patent law:  patent licenses typically allow
> the licensee to make, use, import, sell, or offer for sale the patented
> invention.

While the meaning of the word "use" is best left to lawyers to argue,
I see a clear difference whether a license does not address patents
compared to a license that a) by stating anything about [software]
patents sets an assumption that they exist and are valid, and b)
specifically reserves the right to assert such patents for usage of
the work being licensed [as open source].

The argument was also made that CC0 is a "Public Domain Tool" and as
such explicitly only addresses Copyright (and Related Rights). It's a
poor justification, even if I can see some logic in that.

In this light it is interesting to note that the OSD also does not
mention any requirement that a receiver of a piece of software or
source code should have the right to use it - it is likewise mostly
concerned with distribution, publication and modification. It is only
in practice we see that all open source licenses also allow you to
*use* the software.

Even then, the CC0 seems to be narrower still. My layman
interpretation of CC0 says that by making copies and distributing a
CC0 licensed work, I could not be sued for copyright infringment but
could be sued for patent infringment (by the "Affirmer"), whether or
not I have used it.

It seems to me this is an opportunity
 - for the OSI to affirm the meaning of #7 in the OSD (to cover patents)
 - for the OSI to affirm that an open source license must allow the
receiver to "use" the software

As for CC0, there seems to be some support for it in the sense of "If
you want to put your software into the Public Domain, we recommend you
to use this affirmation/license". Since Public Domain is a copyright
concept (as far as I've been educated), such an acceptance seems
possible, but it should then be made with the reservation that
 - an open source *license* cannot reserve patent rights as per #7 of the OSD
 - the OSI recommends using OSD approved licenses instead of Public
Domain (including CC0) whenever possible

This could perhaps be interpreted as a compromise proposal by me.
Preferably I would want to hear from Creative Commons that our
interpretation of CC0 is not as they have intended and that they are
willing to clarify the issue (such as by a minor edit to the license).


On Fri, Feb 17, 2012 at 10:25 PM, Christopher Allan Webber
<cwebber at creativecommons.org> wrote:
> Hello,
> By this email we (Creative Commons) are formally submitting CC0 for
> approval on the OSI license list.  We've actually discussed this
> internally for some time, but wanted to see if there was enough of a
> demand from people external to CC to see this happen.  I'm happy to
> say that we've gotten a lot of pressure recently to make that
> submission, so it looks like that's in proper alignment.
> CC0 is a "public domain tool"; that is to say, it attempts to make
> releasing something into the public domain possible worldwide.  Where
> possible, the tool is designed to put something into the public
> domain.  Where that is not possible, there is a lightweight "fallback"
> license.
> You can find the "deed", which describes the legal tool, here:
>  http://creativecommons.org/publicdomain/zero/1.0/
> Additionally, the actual legalcode for the license is available here:
>  http://creativecommons.org/publicdomain/zero/1.0/legalcode
> Some additional background here:
>  http://creativecommons.org/about/cc0
>  http://wiki.creativecommons.org/CC0
>  http://wiki.creativecommons.org/CC0_FAQ
> As you may know, last year Creative Commons worked with the FSF on a
> similar process to attempt to clarify whether CC0 was acceptable for
> free software per the FSF's definitions, and to check to make sure CC0
> (including its fallback license) was GPL-compatible.  I'm happy to say
> that this was a massive success:
>  - A CC blogpost after the FSF declares CC0 as acceptable for
>   software, compatible with the GPL:
>   http://creativecommons.org/weblog/entry/27081
>  - The FSF's listing, which includes the statement "If you want to
>   release your work to the public domain, we recommend you use CC0.":
>   http://www.gnu.org/licenses/license-list.html#CC0
>  - Also, as we blogged on CC Labs, the FSF recommends CC0 for
>   "code snippets" in documentation:
>   http://labs.creativecommons.org/2011/05/27/fsf-recommends-cc0-for-code-snippets-in-documentation/
>  - CC0 FAQ entry on using CC0 for software, including suggested
>   marking:
>   http://wiki.creativecommons.org/CC0_FAQ#May_I_apply_CC0_to_computer_software.3F_If_so.2C_is_there_a_recommended_implementation.3F
>  - Lastly, we do provide a plaintext version of CC0 (and actually the
>   core, unported 6 CC licenses these days):
>   http://creativecommons.org/publicdomain/zero/1.0/legalcode.txt
>   http://creativecommons.org/weblog/entry/27094
> Speaking personally, I believe that simplifying the "public domain
> tool with fallback license" space is a good thing, and would be useful
> for FOSS generally.  Conversely, I think CC0 on OSI's license list
> would be useful in that many code hosting platforms look to OSI's list
> when determining whether or not to list a license as an option... and
> I think it would be great if CC0 were listed more often in such places!
> Thanks!
>  - Christopher Allan Webber & Creative Commons
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> License-review at opensource.org
> http://projects.opensource.org/cgi-bin/mailman/listinfo/license-review

henrik.ingo at avoinelama.fi
+358-40-8211286 skype: henrik.ingo irc: hingo

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