[License-review] OSI, legal conditions outside the "four corners" of the license, and PD/CC 0 [was Re: Can OSI specify that public domain is open source?]

[Karl Fogel]

Luis Villa <luis at tieguy.org> writes:
>My tl;dr position, laid out in more detail below, is that OSI should
>be in the business of evaluating specific licenses, and not (to the
>greatest extent possible) external conditions around those licenses.
>As a result, OSI should evaluate and accept at least one PD license
>(ideally the CC0 PD dedication, and any other well-drafted dedication
>of similar style) as an OSI-approved license.

On the face of it, that sounds like a defensible position.  Though we'd
want to be careful to point people to the complexities of PD.

We should also be careful never to say "PD license", but rather "PD
dedication".  (Yes, yes, we all know know that when people say the
former they just mean the latter, but by always saying the latter we'll
avoid a lot of nit-picky sub-threads :-) ).

Note http://projects.opensource.org/redmine/issues/22 btw.

>Functional definitions of open source software are related to, but
>distinctly different from, a definition of an "open source license."
>OSI is not in the business of certifying whether specific software is
>open source software; rather, it certifies whether licenses are open
>source licenses.

Yes.

>I don't think that's a sustainable position for OSI to base its
>analysis on. Any non-trivial software has patent issues these days,
>but OSI can't be in the business of saying "well, this particular
>piece of software has patent issues, so it is not open source." OSI
>can only reasonably say "this particular license, taken at face value,
>gives the permissions necessary for the license to qualify as an open
>source license."
>
>Similarly, except for the most trivial cases, OSI can't say " ...
>unless of course, there are moral rights, or reversion rights, or
>grants of rights the licensor didn't actually have, or
>$JURISDICTION_SPECIFIC_LANDMINE." That's why OSI has always certified
>/licenses/, not /software/, because a thorough analysis of any
>specific piece of software has to involve a lot more than just the
>license- it must involve questions of jurisdiction, questions of
>patents, questions of provenance, etc., etc., etc.
>
>I think the objections to stating public domain disclaimers are open
>source licenses fall into the same category. Yes, there are issues
>with public domain in some jurisdictions, and yes, some specific
>pieces of software nominally under PD may in fact be under other
>licenses. But I don't see that how that is significantly different
>from the problems of any other combination of abstract license and
>specific software: there are always pitfalls that can happen there,
>and OSI can't and shouldn't be in the business of evaluating those
>external factors.

I think I agree.  Both a license and a PD dedication are meant to be
legally binding statements of intent -- based on them, the recipient of
code relies on the licensor not exercising certain monopoly rights.

But that doesn't mean there aren't *other* powers the licensor (or some
third party) might have.  Those are the "external factors" that cannot,
in the general case, be ruled out.

>This doesn't mean that OSI should accept all PD-like statements as
>open source licenses, any more than OSI should approve the "crayon
>licenses" discussed in another recent thread. Instead, it should
>accept specific, well-drafted statements of public domain. FSF took
>this route by endorsing CC0, a well-drafted PD dedication with a
>fallback to a full rights disclaimer. OSI should follow this example.
>I'm not aware of any other well-drafted PD dedications[1] designed for
>use by the authors of a work, so I would stop there, but if there are
>others, OSI should look into them as well.
>
>[Mind you, this is all modulo the caveat that I believe that OSI
>should only approve licenses with patent grants. But since that isn't
>currently a criteria for OSI, I think CC0 clearly qualifies.]
>
>Luis
>
>[1] I would rule out the CC PD "mark", because, while well-drafted, it
>is essentially intended for application by third parties, and as such
>isn't a license.

Well, the PD dedication isn't a license either, formally speaking.  It's
a promise (made as legally binding as possible) that a certain party not
only is not asserting copyright, but that there is no copyright to be
asserted.

Anyway, I like this idea, and wonder what others think.

-Karl