Subject: Re: Can OSI specify that public domain is open source?
From: John Cowan <cowan@mercury.ccil.org>
Date: Wed, 7 Sep 2011 15:31:11 -0400

Karl Fogel scripsit:

> When U.S. Government employees write software on government time, it
> is public domain by law; they need make no disclaimer of rights, it's
> just automatically so.

In the U.S., yes, but users of such software outside the U.S. are
technical infringers.  See the NASA Open Source License, which exists to
deal with that possibility.

What's more, if you modify a public domain program, the modified version
bears your copyright (even if not marked as such), and the result is
fully proprietary unless you give it a license.  Some of the code in the
self-declared public domain Olson TZ database, to say nothing of the
database itself, is quite shaky in this respect:  Arthur David Olson is
a federal employee, but the current maintainer, Paul Eggert, works for
the State of California (assuming I have not conflated two different
Paul Eggerts here).

> OSI can point out that it might be difficult for certain parties to
> place something in the public domain, but we should be clear about
> the fact that, once it is established that something is in the public
> domain, that thing is open source.  That's what I'd like to do.

But how is this to be established?  Barring forgery, if something is
said to be under the GPL or the BSD or the Apache license, it is so.
But saying something is in the public domain does *not* make it so, at
least not beyond the reach of dispute.

> I wish the FAQ discussion were adequate, but since I've watched
> knowledgeable people on various lists assert that PD is not OSS,
> because they couldn't find it in the license list or other places
> where they expected to find it, I think that's as much proof as we
> could ask for that the FAQ location is not adequate by itself :-).

I agree with those people:  PD does not function like OSS and shouldn't
be treated as OSS.

-- 
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