Subject: Re: Can OSI specify that public domain is open source?
From: Karl Fogel <>
Date: Wed, 07 Sep 2011 16:25:29 -0400

Tom Callaway <> writes:
>On 09/07/2011 03:46 PM, Karl Fogel wrote:
>> But note that for the U.S. Government, sometimes there literally is no
>> option to use a license!  They *can't*, by law, if no contractors were
>> involved and the software was written by government employees as part of
>> their official duties, etc, etc.  You see the problem...
>I understand the problem. I still would prefer that we not imply that
>public domain is the same thing as open source. If we must add a FAQ
>item, then I propose something like:
>  Works of the United States Government for which copyright is
>  unavailable under 17 U.S.C. 105. are considered to be in the Public
>  Domain in the United States. Even though such works are not
>  technically open source, in the United States this means that
>  there are no restrictions on those works. This may not be true in
>  non-US jurisdictions. Public Domain is an extremely complicated and
>  tricky concept, and the OSI does not endorse abandoning your
>  copyrights to place a work into the Public Domain whenever it is
>  avoidable. If you wish to license your work with an extremely
>  permissive "do anything you wish" license that is roughly equivalent
>  to a Public Domain work, consider using the Creative Commons 0
>  License, if possible.

Thanks; this is progress I think.

Do you know, has the U.S. ever asserted foreign copyright ownership on a
work that is public domain by virtue of 17 U.S.C. 105?

By the way, that we must add a FAQ item is clear, I think.  This is a
FAQ by the most basic definition of the term -- people ask it
frequently, and it's within our self-chosen purview to address.  The
only question is what that FAQ item will say.