Subject: Re: Please add "Public Domain" to "license" list
From: Rick Moen <>
Date: Fri, 14 Mar 2003 11:49:45 -0800

Quoting David A. Wheeler (
> Rick Moen <> wrote:

> > I'm not sure there's reasonable consensus on the legal effect of
> > declaring one's copyrighted work to be in the public domain.
> I'm not a lawyer, but I talk to them!!  I think there _is_ a
> reasonable consensus on this point.

I'm very interested.  Are there citations from relevant court cases or
statutes?  I've looked in vain.

> Certainly, people place things into the public domain with this
> expectation, and there are no laws PREVENTING people from giving up
> their copyrights.

To repeat:  I see nothing in 17 USC that permits destruction of
extant copyright title.  What people expect the law to do doesn't, in my
experience, have a strong connection to what it does.  (In some cases,
intent is relevant, but doesn't in itself create law.)

> Besides, there is software that is automatically in the public domain
> without such declarations: 

This is true but didn't seem relevant to your question _as stated_.
Which is why I didn't mention it:  I interpreted your question as  
requesting addition of "public domain" as an OSI-approved licence 
for people to _use_ on software they create.  (I may have erred in that
regard.  If so, my apologies.)

However, you could certainly make an excellent argument that software that
becomes public domain ab initio by statute (e.g., created directly by 
USA Federal employees in the scope of their employment) and that is
available in source code form _is_ OSD-compliant.

I suppose the OSI could put a note on 
saying "By the way, software you receive in source code form, with or
without documentation, that you determine was created by USA Federal
employees in the scope of their employment is also open source (at
least, it is under USA law), even though there's no actual licence
statement that documents this."  

I'm having a difficult time imagining much else the OSI could say about
public domain.  Advising people on how to _create_ such software strikes
me as rash for reasons already described.  Moreover, so far, that's not
what the OSI has elected to do.  Instead, it approves licences and
provides a certification mark for their use in an open-source manner.

> > People have sometimes claimed that caselaw has interpreted
> > public-domain declarations as irrevocable licences for gratis usage
> > by anyone -- but I haven't seen citations, let alone any showing
> > that wide legal precedent exists.
> That's not limited to public domain.  Indeed, some lawyers will claim
> that _NO_ open source license is irrevocable, for the same reasons.

That may or may not be true (and I don't know what you mean by "for the
same reasons"), but it doesn't seem relevant to the question you raised.

> If a government released some software source code to the
> public domain, would the OSI claim it's NOT open source?!?

I very much doubt it.  But, so far, the OSI's main vehicle has been 
detailing licences that, when applied as envisioned, produce open-source
software.  When the USA Federal government produces software and the
source code becomes available, that is very arguably open source, but
there's no licence for the OSI's approval process, is there?  ;->

Cheers,                                      "Reality is not optional."
Rick Moen                                             -- Thomas Sowell
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