[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?]

[Chad Perrin]

On Tue, Jan 03, 2012 at 12:09:47PM -0800, Rick Moen wrote:
> 
> 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

I agree that a simple license is generally better than a layered fallback
on top of an attempt to disclaim copyright, but that is not the same as
saying that a layered fallback on top of an attempt to disclaim copyright
is not "open source".


> 
> 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.

I don't think the point is to try to establish a license after
disclaiming copyright, exactly.  Rather, I think the intent is to offer
license terms should the public domain dedication legally fail for a
given jurisdiction.


> 
> 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.

If public domain dedication fails, and license terms apply instead, the
warranty is still valid.  Right?  I think, again, the point was not to
dedicate something to the public domain then try to impose license terms,
but to impose license terms only if the public domain dedication failed.

I have not talked to the author of the Unlicense about this (or at all,
to my recollection), but that appears to be the obvious intent from where
I'm sitting.

-- 
Chad Perrin [ original content licensed OWL: http://owl.apotheon.org ]