[License-review] veto against Unlicence (was Re: [License-discuss] Certifying MIT-0)

[Pamela Chestek]

On 4/24/20 6:44 PM, Thorsten Glaser wrote:
> It’s not:
>
> |This is free and unencumbered software released into the public domain.
>
> This is a voluntary relinquishing of copyright protection done by the
> authors. (Whether this is valid in the country of origin is subject to
> their local laws; someone told me that even in the USA it’s not always
> that easy.) But even if it is, the work is still protected in all other
> countries, or AT THE VERY LEAST those that don’t allow PD dedication,
> due to the Berne convention, which requires a country B to protect a work
> from country A the same as it would protect a work from country B, and we
> know there have been cases of US government employees successfully defen‐
> ding their copyright in a work in IIRC Germany.
>
> |Anyone is free to copy, modify, publish, use, compile, sell, or
> |distribute this software, either in source code form or as a compiled
> |binary, for any purpose, commercial or non-commercial, and by any
> |means.
>
> This is not a licence statement (which would not be valid anyway, because
> a licence is issued as copyright instrument while PD means absence of
> copyright protection) but an explanation of the previous paragraph.
>
> |In jurisdictions that recognize copyright laws, the author or authors
> |of this software dedicate any and all copyright interest in the
> |software to the public domain. We make this dedication for the benefit
>
> Again, this is*only*  a PD statement, not a licence, and*especially*
> not a fallback licence.

Even though the person using this document in association with code may 
be mistaken about the concept of public domain, the intent of the 
grantor is very clear. The grantor wants any recipient of the code to be 
able to  copy, modify, publish, use, compile, sell, or |distribute the 
software, either in source code form or as a compiled binary, for any 
purpose, commercial or non-commercial, and by any means.

For this document to not meet the definition of "open source," a court 
would have to say that there is no such thing as "public domain" in the 
jurisdiction or it isn't available in the situation, the court will then 
have to ignore what the person /thinks/ it means as clearly described in 
the document, reaching a conclusion that the document is entirely 
meaningless and instead the code has no license whatsoever. That is not 
something that would happen in a US court.  I would be very interested 
in hearing whether there is any jurisdiction where the grantor's clear 
intention would be disregarded in this way.

Pam


Pamela S. Chestek
Chestek Legal
PO Box 2492
Raleigh, NC 27602
pamela at chesteklegal.com
919-800-8033
www.chesteklegal.com

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