Subject: Re: Help Selecting License
From: Alex Rousskov <>
Date: Sat, 24 Jul 2004 11:41:38 -0600 (MDT)

On Sat, 24 Jul 2004, Fabian Bastin wrote:

> Alex Rousskov wrote:
> > On Fri, 23 Jul 2004, Fabian Bastin wrote:
> >
> >
> >>An interesting starting point (at my opinion) is the Licensing
> >>Howto, written by Eris S. Raymond:
> >>
> >
> >
> > IMHO, it would be nice if that useful document was linked from the
> > OSI web site (as work in progress, I guess).
> >
> > Note that the document currently does not seem to cover Public
> > Domain designations (which, IMHO, should be the first
> > consideration when deciding on legal basis for software).
> While I am not a lawyer, I think that Public Domain does not exist
> in a legal sense in most of the European countries. In particular,
> an author cannot give away all his rights, especially with respect
> to his honour.  You can only speak about Public Domain after the
> expiration of the authorship rights (usually seventy years after the
> author's death), otherwise it can lead to confusion. Therefore you
> should probably be very careful if you try to clarify what Public
> Domain means on an international level.

While I am not a lawyer either, I think that many popular licenses
lead to even more confusion than a public domain designation,
especially when internationalization issues come to play.

At the very least, the intent and goals of a public domain designation
is much more clear (IMO) than the intent and goals of licenses. A
reasonable legal system is likely to honor public domain designation
intent. An unreasonable legal system is likely to cause trouble to
licensees as well as public domain designators.

I dare to say that the statements such as "public domain does not
exist" are absurd to me. It does exist. Whether and how a given legal
system supports the notion of public domain is an important but
secondary question to me. The legal system serves human needs, not the
other way around. Recall that copyleft and other open source licensing
models "did not exist" 100 years ago; we now see how they influence
legal systems, and how legal systems adapt to human needs.

Said that, the designation should be carefully written to accommodate
as many international requirements as possible, of course. One
approach that have been discussed on this list is to add a "if this
public domain designation is not enforceable, then the following
permissive license(s) apply" clause to the designation.