[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 Wed, Jan 04, 2012 at 12:19:47AM -0800, Rick Moen wrote:
> Quoting Chad Perrin (perrin at apotheon.com):
> 
> > 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".
> 
> Who exactly in this picture is so claiming?  I certainly wasn't.

You appear to be using the fact that an attempted PD declaration plus a
license fallback is not as good as a simple license as a way to argue
against consideration of something for open source certification.  Is
that not the point of this discussion -- considering whether something
should be certified as open source, or even whether it should be
considered for certification?


> >
> > 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.
> 
> That's not what it says -- which is part of where it fails compared to
> (say) CC0.

The fact it does not explicitly say that in the license text is a fair
point, and worth considering.  I even suspect that, in this case, the
increased complexity of CC0 is more than outweighed by its greater
apparent legal clarity, as you suggest here.

I simply tried to explain the apparent intent of the clause to which you
objected as being "meaningless", drawing from this text in an explanatory
page:

    The legal significance of this Unlicense clause is that even if it so
    happened that in some backward jurisdiction there were any questions
    about the interpretation of a public domain dedication like the
    Unlicense, the authors have here very explicitly granted permission
    to do just about anything with the software.

Whether that is how it would actually play out in court is a matter for
lawyers, of course, but that this is the intent of that clause is pretty
clear, thanks specifically to this explanation.

Source:

    http://ar.to/2010/01/dissecting-the-unlicense

(linked from the Unlicense main page)


> >
> > 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.
> 
> My point was that the licence author seems to have attempted to disclaim
> warranty at the same time as professing to put the work into the public
> domain, without realising that the latter, if effective, prevents the
> former.

My point is that the former, if effective, obviates the latter -- and
this appears to be by design.  The former is preferred; the latter is a
fallback.  Coupled with the latter is the warranty disclaimer and, to the
extent warranty disclaimers are still relevant in a given jurisdiction (I
will not swear it isn't, in part because I am not a lawyer in all
relevant jurisdictions) even after public domain dedication, the warranty
disclaimer may still apply.


> 
> You may say that was not his intent.  Me, I think that our having to
> guess intent suggests problems by itself.

You may be right about that.

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