Subject: Re: Can OSI specify that public domain is open source?
From: Richard Fontana <rfontana@redhat.com>
Date: Wed, 7 Sep 2011 17:45:34 -0400

[removed license-review]

On Wed, Sep 07, 2011 at 02:33:09PM -0700, Rick Moen wrote:
> Quoting Karl Fogel (kfogel@red-bean.com):
> 
> > In the current situation, OSI is supposed to either deny or not affirm
> > that (say) SQLite is open source.  That seems a worse result.
> 
> Again, point of order:  OSI has always been really clear that it doesn't
> certify any software as open source.  There really would be no practical
> way to do it, so OSI has never aspired or professed to do so.  It only
> certifies _licences_, and is custodian of the formal definition of open
> source.  
> 
> If a software's surrounding circumstances as a whole result in that
> definition being met, then the software is open source.  For works whose
> copyright titles still exist and haven't totally expired (and weren't 
> non-existent ab initio, as with certain US Federal works), a software 
> licence is necessary but _not sufficient_.  OSI certifies licences as
> granting the necessary rights _if_ surrounding circumstance don't
> prevent their exercise.
> 
> So, the correct answer to 'Why doesn't OSI certify SQLite as open
> source?' is 'OSI doesn't certify _any_ software as open source.'

Maybe a way out of this then is the fact that there is no standard
form of public domain dedication (leave aside what you may think of
what a public domain dedication actually is, or what it actually
achieves). Even in the case of noncopyrighted U.S. government employee
works, I've seen cases where the developers have put a legal notice
stating that no copyright is being claimed by the U.S. government -
and there is no standardized wording for that either. So, perhaps,
OSI's main business has been certifying particular legal documents,
and there simply is no standard one in the sphere that's been
considered (justifiably or not) "public domain". There is CC-0, which
I believe meets the OSD. I suppose, say, the SQLite project could
offer their own legal notice as the equivalent of a license for
certification, and then OSI would have to face the issue. 

- RF