Subject: Re: For Approval: Allegro giftware license
From: Rick Moen <rick@linuxmafia.com>
Date: Fri, 24 Sep 2004 16:07:10 -0700

Quoting Elias Pschernig (elias@users.sf.net):

> I'd like to use the MIT license now instead of approving the current
> one.. but after proposing the license change a user of the library
> raised a problem: The MIT license says that you must retain the license
> notice in re-distributions and even substantial portions of the code.

Is that a problem?  It's only about 20 lines of comment code (or
accompanying README).  

If you want, you can certainly write a shorter and even more permissive
licence, e.g.,  

   Copyright (c) 2004 George Tirebiter
   Do as thou wilt, shall be the whole of this licence.

It wouldn't be OSI-approved, but it'd be quite obviously open source.
(It'd leave you open to possible warranty claims, but at least it's
short.)

> This isn't required by our current license - we don't care if someone
> releases all of it under a new name and makes that GPL for example.

Er, only the copyright holder can, by law, determine the terms of usage
for a given instance of his codebase.  Other people lack title.

> Would MIT allow that?

No, nor can any other licence.

> The above user suggested to change the license to
> "public domain" instead.. but I can't find that in the list of OSI
> licenses.

This matter badly needs to be FAQed.  (That is not a complaint.)

1.  Ever since adoption of the Berne Convention, copyright arises
automatically at the moment of creation of any creative work in the 
statutorily-covered categories (except in exceptional cases such as
works created directly by the USA Federal government).  Prior to that,
omitting copyright notices on distributed copies of the work could cause
the work to go directly to the public domain.  Not any more.  I would 
speculate that memory of the old regime, in part, is causing lingering
misconceptions about "public domain" works.

2.  Because of that, works without explicit licence indications are
_not_ (any more) public domain, but rather are proprietary by default,
since copyright law reserves many important rights (redistribution,
creation of derivative works) by default to the owner, absent some form
of permission grant to the contrary.  (This is incidental to my line 
of reasoning, but I just thought I'd point it out.)

3.  The only way clearly indicated in law for a copyrighted work to
become public domain -- absent extraordinary judicial steps -- is for
its term of copyright to expire.

4.  Declarations by copyright holders that they are "contributing to the 
public domain" some work they own, thus, have an unknown effect.  A
judge might rule them to have no force, in which case likely the work's 
default proprietary licensing would apply until expiration.  Or the
judge might rule that the owner's substantive intent was to grant 
universal permission to use the work for any purpose.  Moreover, the
effect might differ in various jurisdictions.

Therefore, most commentators on this mailing list would tell you to
carefully avoid "changing the licence to public domain".  (NOTE:
"Public domain" would not be, strictly speaking, a licence, but rather
an attempt to nullify the copyright ownership interest in question.
That alone explains why it isn't listed on the "list of OSI licences".)


A few other people on this mailing list have strongly if somewhat
vaguely disputed the point in the past.  Many of them tend to point to
the Creative Commons "public domain declaration" pages as somehow
allegedly proving that the notion has legal merit.

By coincidence, my mother-in-law happened to have attended a lecture at
Stanford by Creative Commons co-founder (and legal scholar) Prof.
Lawrence Lessig, who expressed pretty much _exactly_ the above
sentiments about "public domain" works, during (I think) the Q&A period
at the end.  I wasn't present, or I would have asked him about the
Creative Commons page, and whether it shouldn't be either removed or
heavily annotated since he feels (as I do) that "public domain"
declarations are a doubtful concept.

(The main reason I haven't written to Prof. Lessig directly is his
adoption of a rather obnoxious "challenge-response" regime for his
incoming e-mail.  I'm reluctant to jump through annoying hoops just to
send people e-mail -- and my MTA auto-rejects all possible such
"challenge" mails, for that reason.)