Is public domain software open-source?

When writing earlier this week about Adobe's sponsoring of the SQLite project, I ran into a complicated issue: is software released into the public domain also open-source software?

I have an editor who hates headlines with question marks, but I'm afraid this time it's appropriate, because even experts disagree.

For background, software or other material in the public domain simply means that it's not copyrighted. Requirements to meet the official Open Source Definition are listed by the Open Source Initiative. Two programmers, Eric Raymond and Bruce Perens, founded the OSI about 10 years ago to formalize and codify the open-source idea as it branched off the free-software movement Richard Stallman founded in the 1980s, and OSI lists 68 compliant licenses.

Richard Hipp, who founded the SQLite database project in 2000 as a public-domain project, believes it does qualify as open-source software.

"I've had a number of conversations on this topic with corporate lawyers for companies that are actively using SQLite. The consensus there seems to be that 'public domain' is valid and is a proper subset of 'open source'--except in France and Germany where the concept of 'public domain' is not recognized," he told me in an e-mail discussion prompted by the Adobe story.

But not so fast. Take the view of Mark Radcliffe, the intellectual property attorney who's general counsel to the Open Source Initiative.

When I asked Radcliffe if public domain software was open-source, he was clear: "No. Truly public domain software is no longer protected by copyright, thus it cannot have a license which would impose the terms necessary to comply with any of the open source licenses," he said.

Agreeing with him is Louis Rosen, an attorney with Rosenlaw and Einschlag who previously led OSI's legal work and who still is involved. He directed me to an older but still relevant piece he wrote about why the public domain isn't a license.

"'Public domain' will never be a license. It actually means 'No license required,'" Rosen said. "Software that is 'dedicated to the public' or 'to the public domain' is pretty safe. I just worry a bit when people or companies give software away in such an amateurish way, without understanding that licenses or covenants are far more efficient and effective."

While "public domain" isn't a license on OSI's official list of open-source licenses, Perens said it's not far off: "Software that has been formally dedicated to the public domain through some sort of written statement meets the requirements of the Open Source definition only if the source code is available. Surprisingly, 'public-domain' binary-only software exists in some odd corners of the Net."

And Raymond added, "Public-domain software qualifies...The users are guaranteed all the redistribution and reuse rights that the Open Source Definition seeks to secure by the fact that there is no owner to enforce restrictions."

Moving from the theoretical realm into the practical, though, the SQLite project appears more open-source than not. The project's source code is available without restriction, and programmers who contribute code it to it must explicitly declare their contribution is given to the public domain for perpetuity, which appears to satisfy Perens' opinions.

[lmasanti]

Why is all this important?

I do simplify Open Source in two groups: with forced <br />redelivering of source (GPL) and without any obligation of <br />redelivering (Apache, MIT). (Maybe it is too simplistic!)<br /><br />So, when you speak of "public domain" you are speaking of "non <br />further obligations". Am I right?<br /><br />For the sake of discussion, I'm speaking only about source code, <br />not binary-only files.

[LuvThatCO2]

Its not

I really dont care if SQlite's license meets some arbitrary set of conditions or not. Can I use it for free? yes. Can I have the source for free? yes. Can I do whatever I want with it, including selling it? yes. Thats about as open source as you get.

[wango2007]

You can't protect stuff already in the PD

There is like some of the foolishness that exists in Creative Commons. People scan an image from a Public Domain book, and think they can create a CC license for the use of that image. Copying an image is not a substantial change of any kind, so that doesn't change the status of the image... it is still in the Public Domain... anyone can use it any time without giving any credit/payment at all CC license or not.<br /><br />The CC License is totally irrelevant. CC Licenses only confuse the law, not change it.

[Renegade Knight]

Public Domain

The attorney has it right. If it's public domain it has no lisence. The Open Source movment is a software liscencing model. If you put an open source licence on public domain, it's still public domain because you have exceeded your rights. You can use PD software in your own open source creation, but you can't then require peole who use those parts of your OS software and nothing else to actually follow your OS lisence.<br /><br />Bottom line. Public Domain has no strings. Open Source does.

[wango2007]

Yes, you are correct

Your observations are on target.<br /><br />It appears somone has done something stupid by putting their software in the Public Domain, and want to cover their tracks by trying to change the meaning of "Public Domain." <br /><br />To add insult to injury, these fools are listening to attorneys who are saying outlandish things about what THEY think PD means. These database people deserve to have their bones picked dry by the lawyers.

[dlairman]

Its all in the fine print....

"'Public domain' will never be a license. It actually means 'No license required,'" Rosen [Louis Rosen, an attorney] said. "Software that is 'dedicated to the public' or 'to the public domain' is pretty safe. I just worry a bit when people or companies give software away in such an amateurish way, without understanding that licenses or covenants are far more efficient and effective." <br /><br /><br />Spoken like a lawyer. If you haven't paid a lawyer to dress your product in legaleese drag, it must be suspect, or at least substandard.

[wango2007]

"Public Domain" means no rights of any kind

When I asked Radcliffe if public domain software was open-source, he was clear: "No. Truly public domain software is no longer protected by copyright, thus it cannot have a license which would impose the terms necessary to comply with any of the open source licenses," .....<br />----------------------<br />There should be no debate about this matter at all. The law is clear and has been since at least 1909. People give up all rights when they voluntarily put something in the Public Domain or when it is automatically moved there by virture of the law (currently anything before 1923 and many things after that).<br /><br />No one has special rights of any kind for intellectual property in the Public Domain. That's why they call it that.

[lawrencewinkler]

Not so fast -- what has been placed in the Public Domain?

Software comes in multiple writings. The executable (for various <br />different platforms) and the source code (for various platforms) <br />can have different licensing, or in the PD case, no licensing <br />requirements.<br /><br />So the question will always remain -- which of the writings are <br />in the public domain or licensed, and which are not.<br /><br />And any arguments that once something is in the public <br />domain, it cannot be licensed is true enough, but if one adds or <br />changes the PD version, then that portion which is unchanged <br />remains in the public domain, while the changed portions can <br />possibly be copyrighted. <br /><br />For example, all of Shakespeares works are in the public <br />domain, but a book containing annotations would be <br />copyrightable as to the annotations. A translation of his works <br />updated to Modern English would be copyrightable. <br /><br />A public domain C program can be rewritten into C++ and be <br />copyrightable.

[Penguinisto]

No, and here's how it shakes out:

One can take public domain source, modify it, and then re-release it (with said modifications) under any license they want, including a proprietary or Open Source one. If it's PD, you can do whatever the bloody heck you want to with it.<br /><br />--<br /><br />One cannot take most types of Open Source licensed stuff and lock it down, nor can one convert it into a public domain or proprietary license. <br /><br />The BSD license is the only exception to this, with the caveat that you must include original author credits no matter what (Microsoft complies with this requirement when they swiped the TCP/IP network stack from FreeBSD, by burying the author credits into the headers of the relevant .dll files). IMHO, the BSD license pretty much is a form of public domain license.<br /><br />--<br /><br />Proprietary licenses are the only real unknown here... because there is no perpetuity linked to it. So while it is in full force during the copyright period, once it expires it goes public domain, or it may do so sooner if there is no provable owner of the covered code to be found.<br /><br />--<br /><br />IMHO, Orphanware and Abandonware are a bigger concern to those of us who like doing code, than anything else... and almost all of it is code locked up by some dumb proprietary license, but is legally untouchable, in spite of having no discernable owner. Examples include classic arcade games, old/cast-off applications in niche markets (google for "Canoma" sometime), and discontinued projects that get killed or abandoned when the owning company goes under or gets bought/merged. <br /><br />Abandonware and Orphanware are locked in permanent limbo because legally, you can't really use or improve upon them, yet at the same time they are no longer supported (and in some cases, owned).<br /><br />With Open Source, this is not a problem, because legally anyone can pick it up and work on it. With proprietary licensing, your project is screwed once the owners (corporate or corporeal) die off or cast it adrift.<br /><br />/P

[DaveAtFraud]

One example illustrates the difference

If software is in the public domain, there is nothing to stop abusiness from creating a proprietary product from it. If the software is open source, the license (usually) restricts this ploy. The only thing that stops this is the existence of the public domain code base since it's difficult, but not impossible, to compete with free.<br /><br />All a company has to do is release a proprietary version of the program and then continue to enhance the propietary version. At some point, the public domain version will become sufficientlt obsolete that the company can start charging for their proprietary version. This sort of ploy works even better if the public domain version has some rough edges (e.g., difficult to install and/or maintain)). The GPL, in particular, prevents this sort of action.<br /><br />Cheers,<br />Dave

[Imalittleteapot]

One question?

I'm on Linux and Firefox as I write this so I'm all for Open Source here. However, would you really consider that an abuse? <br /><br />We need money to fund the future plain and simple. If I take a public domain piece of software and add a little value to it or make my own spin I don't see anything wrong with charging for it.<br /><br />Especially when you consider you can almost never take a public domain piece of software and just box it and sell it. You usually have to clean up the code, debug it a bit. Then you usually have to add a lot more code because the public domain software usually only implements one very small part of what a full solution would be. Then you'd normally add a cleaner GUI, and have to write the documentation for the product. Then you may have to package the product, advertise, hire staff, fund a website.<br /><br />It isn't like people can take a piece of PD software and turn around and sell it.<br /><br />Now it may seem weird that I write a small critical piece of PD software and never get compensated even though someone else runs with it and starts making money. However, that's not so much an abuse in a day where so many Open Source licenses exist.<br /><br />Probably the author knows what they are doing when they release into the public domain. They know someone may take their code and throw it into a commercial product. If they don't want that, they can always release with the GPL. However, the author may choose to release into the PD simply because they don't have the funding to turn their code into a shippable product. However, that doesn't mean they wouldn't like to see their public domain in a big piece of popular software.<br /><br />Most PD software isn't going to be that critical anyway. It's usually something that'll easily be reimplemented anyway if it ever does see a commercial product.<br /><br />In the end it's the authors choice. If the author makes the decision to release into the public domain knowing this can happen, then in the end, it's really their choice with their work.<br /><br />Now the real abuse is hiding Open Source code into a closed source project hoping no one would notice. That is against what the author wishes.

[dargon19888]

Not exactly...

Does the Open Source Initiative thing that Apache licensing is Open Source?<br /><br />Under the Apache License, which is very liberal, you can create a non-open source product, as long as you identify that you're using apache based code.<br /><br />Specifically, any thing developed under Apache is fair game for someone to use however they see fit.

[gizmobits]

Wrong.

The BSD licenses surely are open source and you can make a proprietary, derivative work from something licensed under the BSD licenses - think of the Mach kernel and BSD core in OSX. You argument is 100% flawed and invalid and will only serve to spread misinformation.

[BrucePerens]

Lots of Confusion Here

Lots of people are confused by this issue.<br /><br />OSI's attorney, Mark Radcliffe, is confused regarding whether public domain software would comply with the Open Source definition, vs. whether the Open Source Initiative could put "Public Domain" on the list of acceptable LICENSES. Public Domain is not a license. However, software that has been dedicated to the public domain and has source available complies with all of the provisions of the Open Source definition. A license is not necessary to assure compliance with the Open Source definition in this one specific case, software that is dedicated to the Public Domain and has available source, because everybody would have the rights called for by the Open Source Definition.<br /><br />A complication of this are that while there is tremendous precedent for the dedication of formerly-copyrighted works to the public domain by their copyright holders, there is no affirmative statement in U.S. copyright law that says you can do so! Thus, it makes more sense to use a license like BSD, which achieves the same purpose.<br /><br />A great many of the other folks here are confused that public domain does not contain GPL-like "reciprocity" or "share and share alike" terms, and that thus public domain might not be considered Open Source. GPL-like terms have NEVER been required for a license to be accepted as Open Source. Nor does the Free Software Foundation require GPL-like reciprocity terms for a license to be considered Free Software. Both organizations accept licenses that allow the software to be taken private.<br /><br />Thanks<br /><br />Bruce Perens

[penguiniator]

A Failed Transaction

One thing not being considered is the transaction between programmer and distributor. In free software it is usual for the software to be free of charge, though not necessarily. Instead of money, what the program writer receives for the effort of contributing is the same software with all of the other contributions made by others. This means they get back a better program (hopefully) than they started with.<br /><br />OSI approved licenses do not guarantee this, as was pointed out. And it was argued that public domain software meets the definition of Open Source even with this glaring flaw.<br /><br />This should give pause to any programmer considering contributing to a project with no guarantee that there will be compensation in any form whatsoever, whether in the form of money or code. It is often assumed that free software programmers contribute solely for altruistic reasons and need not be compensated. This is simply not true across the board.<br /><br />Compensation may be in the form of money, code, public recognition, job offers, etc. But public domain software offers none of these rewards, and the Open Source definition makes no guarantees for them either.<br /><br />Discounting these rewards for the hard work put in by thousands of volunteers is a big mistake. No one will volunteer indefinitely without reward of any kind when their work is taken advantage of for the sole benefit of a few.<br /><br />The GPL stands above nearly all other licenses in this regard by explicitly considering the transaction between programmer and distributor.<br /><br />For the purposes of this discussion, public domain software may indeed meet the definition of Open Source as intended by its authors, one of which has posted a reply to this article. But in my view, both public domain software and the Open Source Definition contain a fatal flaw by not placing a high-enough value on the contributions made by programmers and focusing almost exclusively on the benefits received by consumers of the product.

[tzs108]

A Case of Public Domain

(But first, a correction. Unless he's changed his name, you meant "Lawrence Rosen" or "Larry Rosen", not "Louis Rosen").<br /><br />The few programs I've developed that weren't tied up with work, and so that I could release, I've released as public domain. The reason <br />is that I view releasing software to the world the same way I view the publication of new mathematical theorems or scientific research. <br />That is done to increase the general pool of knowledge available to all humanity. I think that is a worthy and noble aim, and so release <br />my software that way.<br /><br />By the way, note that almost open source software, other than public domain software, uses licenses based on copyright. Copyright <br />expires. Everything now under GPL, the BSD license, the MIT license, the Apache license, and all the others, whether officially Open <br />Source(tm) or just open source, will become public domain at some point. When they copyright on the Linux kernel expires and the <br />kernel becomes public domain, are we going to start saying that Linux is no longer open source? I don't think so. Therefore, it makes <br />no sense whatsoever to say that software that starts out public domain is not open source.

[Jay Godse]

Re: SQLite is Open Source

SQLite is open-source. You can freely acquire and use the source at www.sqlite.org. <br /><br />The authors of SQLite have renounced copyrights to the software. This means that it is as free to use as air is to breathe. <br /><br />Licenses are only needed if you are using copyrighted software to which you don't own copyright. A licence is a contract from the user that transfers some of his rights as a copyright owner to you, optionally in exchange for something else. <br /><br />Since copyrights are implicitly granted to owners of works, anybody wanting their works to become public domain works must explicitly dedicate their work to the public domain. Once dedicated to the public domain, using the software does not need a license because there is no copyright owner to grant the license. <br /><br />See www.squidoo.com/sqlitehammer and www.squidoo.com/software_ip_management for more information.