[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 rick at linuxmafia.com
Tue Jan 3 20:09:47 UTC 2012

Quoting Chad Perrin (perrin at apotheon.com):

> I find it dismaying that your response to me seems so hostile, given all
> I did was suggest that the Unlicense be *considered*.

Apologies if I seemed personally hostile, Chad.  I really didn't mean to
come across that way.

What I should have said is:  There are a lot of software-oriented
people, you among them, who continually seek to approach the absence of
licensing as closely as possible with a lack of caution about legal
consequence, and many of the licences they advocate and discuss are
defective in fairly obvious ways.  It would be nice if there were a bit
more attention to basics, though I know it's the way of the world that
it won't happen.  

The attitude I'm speaking of is typified by what Arto Bendiken, author
of Unlicence, wrote on its one-year anniversary at the beginning of
2011:  'We wanted out of the copyright game, but were unsure how it
could effectively be done in practice.'[1]  Guess what?  There's a
worldwide default-copyright regime, opting out of it is simply
problematic, and attempts to do so risk creating non-deterministic
effects that depend on the jurisdiction and judge.

And that's the pity of it:  Using a very simple standard permissive
licence such as MIT/X11 License or even a peculiar and cramped but
somewhat standard 3-line licence like Fair Licence achieves everything
Bendiken and others want (_and_ actually escape warranty liability)
except for the ideological point about getting 'out of the copyright

And because of that ideological hobbyhorse, everyone's time gets wasted.

Since we're talking about Unlicense, let's go on a bit:

Paragraph (and sentence) #1 professes to put the covered work into the
public domain.  As mentioned, paragraph 2 professes to be a grant of
rights normally reserved by default to a copyright owner, which makes no
sense given that the preceding sentence professed to eradicate the
work's quality of being ownable.  _However_ (upon reflection), in itself
that would be harmless if redundant and pointless:  One can interpret
paragraph 2 as an elaboration of the consequences of the first

Paragraph 3 is mostly further explanation of the concept of public
domain, and therefore harmless if not useful.  Its middle sentence 
elaborates that the erstwhile author aims to bind heirs and successors,
too (which is a logical inclusion, irrespective of whether it works).

Paragraph 4, though, is the one that would be amusing if it weren't
tragically broken:  It's the warranty disclaimer.  People accepting the
covered work are obliged to accept the condition of no warranty,
otherwise there is no licence.  Except, oh, wait:  Paragraph 1 professed
to put the work in the public domain, so the erstwhile owner has sawed
off and evaporated in paragraph 1 all power to require the condition in
paragraph 4.

And, my larger point is:  This sort of low comedy happens just about
every freakin' time software people attempt to engineer a way to nullify
copyright law by copying and pasting from existing licences,
non-licences, and semi-licences.  Bendiken, for example, says that he
copied and pasted SQLite's copyright waiver and MIT/X11's warranty
disclaimer, and voila!  Unlicense.

Text salad from popular projects:  What could possibly go wrong?  

Bruce calls these crayon licences.  I tend to use the phrase 
'cargo-cult law'.   

[1] http://ar.to/2011/01/unlicense-1st-year

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