[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 Karl Fogel (kfogel at red-bean.com):

> Is it required that the author of a license submit it before OSI
> evaluates it for approval?

I can't remember for sure.  Someone on the Board should speak to that. 
My vague recollection is that the Board has in general made a tactical
decision to not get roped into certification questions just because some
net.random wanted a theoretical question decided and wanted to make work
for others.  So, if I recall correctly, the Board expects either the
author/stakeholder to submit it or for there to be some really
compelling reason to consider it anyway.

> Thanks for reminding about the license-fallback part of CC0, Rick.

No problem.  I can't claim any personal credit, but know that the text
of CC0 reflected a lot of work to make it resistant to problems
otherwise inherent in PD declarations, and followed some discussions I'd 
held with Prof. Lessig and other Creative Commons people about the
issues.  I think FWIW that they did a really good job.


On another note:  I mention the UK as one known problem point for
professed PD declarations.  The best assessment of this I know of was a
discussion on the ukcrypto mailing list in which solicitor David
Swarbrick contributed:


  In article
  <69DB54A9E557D411865000508BA704BA3868A6 at mailhost.presentation .co.uk>,
  Owen Blacker <owen... at pres.co.uk> writes 

  > "Public domain" is not that tricky a concept. The owner or originator
  > of material has only to say "I renounce all ownership rights in this
  > work and invite anyone to use it", then henceforth it cannot be his or
  > anyone else's copyright. The same applies if the author has been dead
  > for a long time, nobody owns the copyright on his work.

  I would disagree. Public domain in UK law is properly used with respect
  to the extent of knowledge of an item - 'Is it in the public domain'
  means 'Is it a secret'

  The nearest to what you say is when material comes out of copyright, at
  which point it is 'non-owned' I know of no mechanism for renouncing
  ownership in th eway you decribe. I can grant an irrevocable licence to
  others to use a work, and I might find it difficult or impossible to go
  back on the licence (achieving a similar result, perhaps), but unless I
  am paid for it, it will be revocable.

  There is in effect no concept in UK law of ownerless property. Property
  is that which has an owner. Whena work comes out of copyright under law,
  it ceases to be property. 

  -- David Swarbrick, Solicitor, Brighouse, West Yorkshire HD6 1RW T:
  +44(0)1484 722531 F: +44(0)1484 716617 m: dav... at swarb.freeuk.com w:
  www.swarb.co.uk The Law Society Regulates us in the conduct of
  investment business 



  Owen Blacker wrote:

  > IANAL, but I would've thought, then, that you're just granting an
  > unconditional licence in perpetuity...

  Yes. And however unconditional you express it to be, if the licensee
  gives no consideration, it can be revoked, and if, for example, I am
  insolvent, owing a million to the tax man, write some software which is
  worth a million, but then 'give it away' by dedicating it to teh public
  there would be little difficulty in law in a trustee in bankruptcy
  revoking the licence. That ignores the practical damage to the value,
  but the law would be fairly simple.

  -- David Swarbrick, Solicitor, Brighouse, West Yorkshire HD6 1RW T:
  +44(0)1484 722531 F: +44(0)1484 716617 m: dav... at swarb.freeuk.com w:
  www.swarb.co.uk The Law Society Regulates us in the conduct of
  investment business 



I've had the mailing list discussion thread linked from my Web page
about 'public domain' works (specifically, those with unexpired
copyright terms) and their challenges, but recently that mailing list's
archive lost all pre-2010 postings.  Fortunately, I've found a
third-party archive at MarkMail (from which I'm quoting the above):

http://markmail.org/message/k4uk2och5dozfx7i#query:+page:1+mid:2iocwjcfhhjcgf7i
http://markmail.org/message/k4uk2och5dozfx7i#query:+page:1+mid:7iysvsnczhic6cls

Many of the other comments in that thread, including some others by
Swarbrick, are quite interesting.