[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?]

[Rick Moen]

Quoting Luis Villa (luis at tieguy.org):

[my example of the former RSA patent's effect of preventing mod_ssl 
from being open source despite its BSD terms:]

> I don't think that's a sustainable position for OSI to base its
> analysis on.

Your objection would be quite relevant if I had alleged that OSI should
base its licence analysis on external considerations that prevent a
particular piece of software from being open source despite its
licensing, but I simply said no such thing.

I merely gave it as an example of a piece of software being proprietary
despite licensing, and as a response to Chad Perrin's claim that a
crypto software package should not be considered proprietary merely
because some countries prohibit (strong) crypto as a bad 'precedent',
pointing out to Chad that that 'precedent' already has a long history.

Really, I doubt I was actually that unclear.  In fact, I am having a
difficult time seeing that I was unclear at all.


> [Happy new year! Bringing this up again in part because Red Hat
> recently, and in my opinion correctly, reevaluated their position on
> public domain in Fedora:
> http://lists.fedoraproject.org/pipermail/announce/2011-December/003025.html]

Sorry, but what's the relevance?

Red Hat, Inc. are in the business of, among other things, deciding what
packages meet their licensing criteria for Fedora based on all of the 
surrounding facts, examining what known evidence might impair or prevent
the intended PD declaration from having the desired legal effect in at
least the most important legal jurisdictions.  OSI, by contrast, have
neither the staffing nor the mandate to examine all of the relevant
legal circumstances for particular software packages, nor actually
anything about particular software packages.

Nobody with half a brain has ever denied that any software is public
domain that is either (1) truly public domain ab initio or by expiration
of copyright runtime or (2) has had its copyright ownership title
disavowed with conclusive and irreversible legal effect, at least in 
jurisdictions deemed of interest.  The problem has always been
determining when legal criteria for case #2 have been met.
Additionally, a PD declaration is _not a licence_.  It is someone's
assertion that either copyright title doesn't exist at all, or that
he/she desires that his/her rights become permanently unenforceable.


> The tl;dr position of those opposing PD was basically to ignore the
> actual text of the PD statements and instead look to things outside
> the "four corners" of the license; notably that (1) PD doesn't work in
> all jurisdictions and/or (2) many things that are labeled PD are not
> actually PD.

I'm sorry, but there is always a relevant legal context to any purported
legal instrument, and it would be height of folly to decide to ignore
that context and focus solely on the licence -- or, in this case,
non-licence -- text.

The surrounding legal context makes PD declarations legally problematic
to the point of being non-deterministic in ways that actual licences are 
not.  E.g., it is not at all clear that an owner can effectively
disclaim rights for (binding) his/her heirs, creditors, successors, and
assigns.  It _is_ clear that there are very important jurisdictions
where such intended jurisdictions simply fail to have the desired
effect.  (Writing off the UK as unimportant seems, oh, I don't know,
perhaps a bit rash, no matter what happened my home town of Hong Kong.)



> 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." 

Mu.  OSI does not certify software.  Nobody upthread claimed that it
does.

> 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."

Unfortunately, there are some severe problems for PD declarations that
simply don't exist for licences.  _And_ PD declarations aren't licences,
anyway.  (CC0 is a special case because it includes a licence; see
below.)


> 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....

For values of 'issues' equating to 'has zero of the intended effect'.

> FSF took this route by endorsing CC0....

I'm sorry, but haven't we already gone over this a few times?  CC0 is
_not_ a simple PD declaration, but rather a PD declaration with a safety
fallback to a simple permissive licence for jurisdictions and
circumstances in which for whatever reason the PD declaration clause
doesn't work.  (There are good reasons why that fallback needs to be
there.)

Thus, it is an open cource licence because of the second half.  (It is
also a _licence_ because of the second half.)



> [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.]

So, is Creative Commons proposing CC0 for approval as an OSD-compliant
licence?  I would certainly favour its approval, because it is (1) a
licence that (2) is OSD-compliant and lacks fatal problems.  But I have
not seen Creative Commons submit it.

Are you also suggesting that some other PD declarations be OSI approved?
If so, which are they, and are their authors submitting them?