[dojo-contributors] problems with the public domain dedication

[Brian Douglas Skinner]

> I can post a quick summary about *why* the public domain 
> dedication (PDD) is problematic.

For people who are interested, here's a quick summary about why the 
public domain dedication is problematic...

~ Brian

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In countries like the United States and India it is possible to place 
software in the public domain.  In these countries there is a statutory 
framework for donating software to the public domain.  However, there 
are a number of problems...

(A) Moral rights problems

In some jurisdictions, including Germany, it is impossible for an author 
to place a work completely in the public domain.  An author cannot 
entirely relinquish copyright because the author automatically retains 
"moral rights".

(B) Liability problems

Placing software in the public domain is risky for the author because 
the author may retain a "warranty obligation".  The author may be held 
liable for flaws in the software, or for a user's mis-use of the 
software.  In the US there is no statutory mechanism for placing 
software in the public domain without incurring a risk of liability.  In 
contrast, by using an open source license, the license can explicitly 
disclaim warranties.

(C) Retraction problems

When an author places a work in the public domain, that may be 
considered to be a gift, rather than a legal agreement.  That gift may 
be an "illusory and unenforceable promise" that could be retracted by 
the author at any time.  Users might refrain from using the software out 
of fear that the public domain dedication and may someday be retracted.

(D) OSI certification problems

The Open Source Initiative (OSI) allows you to label your software as 
"OSI Certified Open Source Software" if the software is distributed 
using an open source license that has been approved by the OSI.  The OSI 
has approved about 60 open source licenses, including common licenses 
like the GPL, LGPL, AFL, BSD, MIT, Apache, Mozilla, etc.

In the 1990s, the OSI explicitly included public domain software as "OSI 
Certified Open Source Software", but in 2001 the OSI changed that 
policy, and now public domain software is not approved as OSI certified. 
  That lack of certification creates practical problems.  For example, 
the Google "Summer of Code" program will only fund projects where the 
code is released under an OSI approved license.

(E) Dual-release problems

It is common for open source projects to "dual-license" their software, 
making the software available under more than one open source license. 
That allows the user to choose the license that best meets their needs.

Even though the OSI does not certify public domain software, it would 
still be possible to get OSI certification if the software could be 
released using both an OSI certified license and a public domain 
dedication.  Unfortunately, that sort of dual-release strategy will not 
work.  That dual-release is considered contradictory, because the author 
is necessarily asserting copyright rights by using an open source 
license, while at the same time using a public domain dedication that 
asserts that no one holds the copyright to the software.

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Further reading:
[1] http://en.wikipedia.org/wiki/Public_domain
[2] http://en.wikipedia.org/wiki/WP:PDWTF
[3] http://www.zetadev.com/misc/software-public-domain/
[4] http://www.zetadev.com/misc/software-public-domain/responses.html
[5] http://en.wikipedia.org/wiki/Moral_rights
[6] http://www.rosenlaw.com/lj16.htm
[7] http://www.crynwr.com/cgi-bin/ezmlm-cgi?3:mss:3177:ldaadnjlgdmdomdaofhc