Ask HN: Why not publish into the Public Domain, instead of OSS licence? | Hacker News Reader

Ask HN: Why not publish into the Public Domain, instead of OSS licence?

13 pointshutzlibu45 comments

Hey HN,

I am about to publish my long year project and have not yet choosen a licence. Anyone should be free to use it, for any purpose. (So definitely no copyleft licence)

But why should I use any licence at all and not skip all this alltogether and choose the public domain?

I mean, I still want the credit (and donations) directed towards me. But in my understanding there is not really a difference? Fraud happens with proper licensed projects, too (when some shady website repackages vlc for example and sells it as theirs or redirect donations) and claiming ownership of something you do not own is fraud either way? So what is the advantage of a common OSS licence, except the overhead of long license text (with maybe my name and email) to be included everywhere?

Am I missing something important?

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I publish all of my original work into the public domain (using Creative Commons Zero), and have for years.

The reason, for me, is almost entirely pragmatic. Copyright and licensing are protections, but in today's world, receiving the benefit of that protection requires a budget, a lawyer, and a willingness to undertake legal proceedings which could take years to resolve.

If I am willing to invest in (1) registering my copyrights, which in the US is the only way to receive damages, (2) ongoing and perpetual searches to make sure no-one has violated my copyrights or licensing, (3) the costs to have one or more lawyers write letters, sue, and defend the suit in court against a likely large corporation who will spend millions to delay the case and bankrupt me, then I absolutely should put a license on my work and actively engage with my copyright.

If I'm not, regardless of whether I cannot afford to or do not desire to make a lawsuit my life's work, then I should opt out of the entire system. That is usually my choice.

( As a further note, Yale Law professor Stephen Carter argues that there's a fourth condition there: (4) if I'm willing to kill someone to enforce a legal verdict in my favor. See the quote in https://www.theatlantic.com/politics/archive/2016/06/enforci... )

I feel there is a larger philosophical question here. If a law cannot be enforced, should it still be made into law, to signal the expected behavior to law abiding citizens, or should it be left out of the books?

Say for example there is a untraceable doping substance that gives an unfair advantage. Should it be put on the banned substance list even if we can't ever prove usage?

Oh the laws work, they're just limited to those who can afford it, which is how those who can afford it want it to stay.

Well, on first glance the CC0 sounds good to me:

"CC0 helps solve this problem by giving creators a way to waive all their copyright and related rights in their works to the fullest extent allowed by law"

But the common criticism of CC0 is:

"No trademark or patent rights held by Affirmer are waived, abandoned, surrendered, licensed or otherwise affected by this document."

Which sounds very contradictory to me. I am not "waiving all my copyright and related rights to my works to the fullest extent allowed by law" if I would reserve my right to patent it. I mean, in the EU where I reside software patents are not possible in theory anyway, but I would be allowed to file a patent in the US with the CC0.

Copy rights are different from trademarks or patent rights. Related rights to copy rights are e.g. moral rights in France. CC0 and other public domain deeds (e.g. Unlicense) are about copy rights alone.

If you mean to also disclaim trademarks or patent rights, you will need additional waivers for each of those, as they're different aspects of rights and law.

1) Not all countries recognize the public domain and will assume no one gets a license (France does this I think.)

2) I'm not entirely sure why you're against copyleft. There's no legitimate reason not to distribute source code and this keeps the things you write from being used to hurt people. If you're concerned about people repackaging and selling your stuff then the GPLv2/3 is probably a good idea.

1) But this is my point, I do not see why I need a licence at all? Or would this mean, people in france could legally claim ownership of my work? That sounds wrong (but I know, no real legal advice here)

2) that would be a longer, different discussion, but as far as I know, there is GPL code used in military applications that do hurt people.

Edit:

"The public domain under French copyright

A work enters the public domain (domaine public) once the proprietary rights over it have expired. It may then be used without charge, so long as the moral rights of the author are respected.[17] Notably, the name of the author and the original title of the work must be cited."

So france sounds good to me.

Consider a country that does not recognize public domain. In such a country, all rights on the work is reserved by the author, i.e., by you. Now imagine a software developer in that country who wants to use your work in their software. They cannot because you have not granted a license to them to reuse your work.

Disclaimer: I am not a lawyer. This is not legal advice.

But is there any country, that does not recognise the public domain? I could not find any.

Also wouldn't that mean, those countries could not listen to Beethoven in a legal way? So I doubt that.

The copyright term expires a certain number years after the death of the author. That number varies from country to country. Usually, it is around 50 years or 70 years after the death of the author. But in some countries it is as short as 25 years and it is 100 years in Mexico.

Therefore in most countries, ancient work like Beethoven is allowed to be in public domain explicitly by their law; either due to the fact that the work was created before copyright laws existed or due to the fact that it has been more than 100 years since the death of the author.

However, you probably want others to be able to use your work while you are alive. So the circumstances for your work are quite different from that of Beethoven's work.

I don't know if there is any country that does not recognize public domain but see https://creativecommons.org/share-your-work/public-domain/cc... for more insights on this matter. If we were to trust what is written on this page, it does seem that dedicating your work to public domain is not a simple matter. The CC0 license helps with explicitly waiving as many rights as possible while still protecting you as much as possible with an explicit disclaimer.

Disclaimer: I am not a laywer. This is not legal advice.

(I know to not expect legal advice here)

So you think it is impossible to give up my proprietary rights in france? That sounds stupid and would be a major obstacle. I would suspect it is possible, just not common.

I am very sure it would be possible to do, with proper legal advice or going to a court, but that would kind of defeat my point of avoiding licence headache.

Did you read the CC0 link I shared? It has something to say about this. Quoting the relevant part here:

"More challenging yet, many legal systems effectively prohibit any attempt by these owners to surrender rights automatically conferred by law, particularly moral rights, even when the author wishing to do so is well informed and resolute about doing so and contributing their work to the public domain."

I am not saying it is impossible to give up your proprietary rights in France. I don't even know what the laws of France are. But it definitely does not seem like a simple process. For example, almost every license has a separate section dedicated to disclaimer emphasized in either all caps or italics. Those disclaimers are necessary for various reasons or you might be held accountable if your software does not work correctly or, worse, if it causes damage to users. So even if you were to share your work in public domain, what do you do about the disclaimer?

Are you willing to take the risk of omitting a well-written disclaimer drafted by laywers and open yourself to the possibility of being sued by someone because your software did not work the way it was supposed to? If you are going to add a disclaimer there anyway, then you no longer have the benefit of avoiding the overhead you wanted to avoid. In that case, you might as well go with CC0 or a minimal license like ISC, MIT, etc.

The various open source and creative common licenses were made exactly to help creative people like us who are not trained in law but who understand our domain of creativity well. These licenses allow us to be creative and share our creativity with the world without having to worry about whether public domain is applicable in a certain country or not, what the legal framework for it looks like, whether we need to add an additional disclaimer or not, what the precise wording of the disclaimer should be, whether the disclaimer would be valid in other countries or not, and so on.

By the way, I believe I understand quite well where you are coming from. About 15 years ago, when I began releasing some of my hobby projects as open source software, I too wondered if I couldn't just publish everything into public domain. After a lot of discussion on IRC channels, learning from the experts, and reading about open source licenses, I realized it is just simpler to take a well established open source license and use that for my projects.

Disclaimer: I am not a lawyer. This is not legal advice.

Thank you for you exhaustive answer.

"After a lot of discussion on IRC channels, learning from the experts, and reading about open source licenses, I realized it is just simpler to take a well established open source license and use that for my projects."

And I know it is easier, to just use a established licence.

But if I would have wanted the easy way, I would have never started my project in the first place. It is kind of big. Maybe big enough, that I can risk some stupid laws in some countries getting in the way. But I do not like to adopt to stupid laws. I would like it the other way around. The laws should change that try to force making proprietary standard. That might not change if everyone all the time adopts to it.

So I am leaning towards making my stand here. My country (germany) allows it, so I do not think I am in danger of being sued. There might be problems regarding collaboration later on, but this can be worked out, I hope.

edit:

apparently no, in germany you also cannot just release into the public domain. Great.

Germany has no public domain, except by running out of copyright terms. There is no "releasing into the public domain". I think you'll find many European countries that work similarly.

Beethoven has been dead for far longer than 70 years, so his work is in the public domain.

Suicide would be impractical, just to have your software be free after several decades. ;-)

If you don't put a license on it then by default in many countries (such as the US) no one can use it for any purpose whatsoever as they have not been granted a license to do so. It sounds like from your quote this is the case for France also: your proprietary rights would expire based on some legal schedule (and one that the US has likely influenced to be extremely long).

A license isn't how you restrict something that is by default unrestricted: a license is how you selectively unrestrict something that is by default restricted... it is a contract between you and someone else to grant them rights they don't normally have.

If you want credit then use the ISC license. Otherwise people aren't required to give you credit. Even if you do public domain, you still need a license-like disclaimer like Unlicense or Creative Commons Zero. You also have to live in a country that permits you to place your work in the public domain and you can't be employed unless you get your employers explicit permission.

Just because fraud happens doesn't mean you should throw your hands up in the air and give up. If you choose ISC you can monitor GitHub and other services to see who's copying your code without giving credit and then set them straight.

It should also be noted that public domain is sometimes treated as suspect, because there's been instances where people have chosen public domain because they didn't actually invent the code or the math or the algorithms, and felt that stamping their name on it and demanding credit would actually put them at risk of being sued by the actual copyright or patent holders, which effectively punts the burden of tracing down the works provenance to the user.

I never heard of the ISC licence. I look into it.

But I do not want give up concerning fraud, I just do not see how a common licence will protect me more. And due to the nature of my project, I am not worried about people using code of mine, but repackaging and selling the whole thing as theirs and maybe even legally doing so, if I make a mistake there.

The ISC license is a simplification of the MIT/BSD licenses made possible by the universal adoption of the Berne Convention. Anyone who isn't doing GPL should choose the ISC license. There's also Apache 2.0 if you want to want to support FAANG in their efforts to weaken software patent holders.

What is your project? If it's possible for people to "steal" the whole thing and sell it then why do you intend to put it into the public domain? The open source code I write has less than zero economic value. If someone ever found a way to sell my work I'd be thrilled because then I could copy their tactic and convince their customers to become my customers.

"What is your project? If it's possible for people to "steal" the whole thing and sell it then why do you intend to put it into the public domain?"

It is a visual programming language bundled with an IDE.

And since code is just information, anyone can copy it and claim as theirs - like with everything immaterial. Licensed or not.

I would be just concerned, if people could legally claim ownership of it, whith public domain.

Like Blockly? Have you considered offering it as an online service? Then you don't need to publish the code and at all and there's no problem.

With public domain, the public owns it. So even though it would be kind of slimy, they would be well within their rights to claim ownership over your work, because you gave it to them. The fact that you feel this way, would make me not believe a public domain accreditation coming from you btw. In fact, maybe it isn't slimy at all. Consider classical musicians. They own their performances of Mozart. If someone takes what you've built and pull through on the execution to turn it into a profitable product, then they're basically doing the same thing. They earned the income.

So the biggest concern with using someone's work, on the path to success, is making sure that it's being used in accordance with their intentions. Since otherwise the moment you start pulling in money those people will turn around and sue or generate bad press or gossip. Licenses protect your users rights. That's why you need one. Since otherwise no one's going to use your work.

No, actually a bit more advanced than blockly (in my opinion). But something in that direction.

"Consider classical musicians. They own their performances of Mozart."

But they do not own the composition. I do not think the compiling can be viewed as performing, but I am not a lawer.

And I do want to publish the code.

I didn't say anything about compiling. What do you hope to gain by publishing the code? I'm assuming you've written GUI code? GUI code usually isn't a work of art.

Erm. How could a visual language work with only gui code? I've written all sorts of code. Compiler, database, visual framework etc.

And what do I hope to gain by publishing it and not keeping it proprietary? Well, a better world obviously. So idealistic reasons.

Terry Davis was an idealist. He created a public domain operating system and it earned him the reward of becoming a homeless man who was killed at a railway crossing. His work can't make the world a better place anymore because he's not here to work on it.

What is your language doing for executables? I've been intending to offer an IDE of some sort for Actually Portable Executable for some time.

Well, "making the world a better place" is surely subjective. The taliban and the nazis want to make the world "better", too. And Terry Davis was a racist theocratist and had serious mental issues, so I think this is what lead to his sad ending, not that he choose the public domain for templeOS. And I think my ideals are more align to what is commonly accepted as "good".

And more details about my project I will share, once it is released. I just have to make up my mind about the licence and do a screencast.

Why is ISC better than MIT? I don’t think I’ve ever seen it used before.

A friend once released a fairly popular program into the public domain. He was a radical open sourcerer and so he thought it would be a grand gesture.

He told me he regrets it. Not releasing it for free but putting it into the public domain. He had zero control over it and that would come back to bite him. His biggest problem was that a number of people would produce their own versions. Sometimes they were improving it but sometimes they were just inserting malware. He could do nothing.

To make matters worse, his name was still all over the code. (As it should be.) So he continued to get support requests and he often had trouble answering them because he had no clue about the proliferation of versions. The malware just made things worse.

He came away feeling that maintaining a fully-licensed tree on GitHub (or elsewhere) is kind of the right mix.

Ok, to answer my own question of why not:

because the various legal systems regarding copyright are a abomination, that simply do not allow me legally to waive my rights.

CC0 claims to waive my rights to the fullest extend, but reserves my right to file a patent. Not what I want.

The closest seems the unlicence:

https://directory.fsf.org/wiki/License:Unlicense

(but it seems not recommended by GNU, for whatever reason - they recommend the CC0 instead)

https://www.gnu.org/licenses/license-list.en.html#Unlicense

This is annoying because I just want to make it clear and simple for anyone without doubt, that my project shall be free for any use, any time. A layperson cannot divide between all the various GPL, LGPL, MIT, etc.

So unlicence is my current favorite, until I find the caveat.

(Not a licence expert) There's the Do What the Fuck You Want to Public License:

DO WHAT THE FUCK YOU WANT TO PUBLIC LICENSE

TERMS AND CONDITIONS FOR COPYING, DISTRIBUTION AND MODIFICATION

0. You just DO WHAT THE FUCK YOU WANT TO.

http://www.wtfpl.net/

https://en.wikipedia.org/wiki/WTFPL

This license is typically laughed at by corporate legal departments.

We've had countless software license audits and any sign of WTFPL is always a red flag in the audits' reports.

CC0, on the other hand, passes with flying colors.

To be honest, I don't know why WTFPL fails, whether by its scarcity or tone. I'd love someone to share a knowledgeable hint on this.

curious how the Unlicense is viewed by legal? I've been throwing that on all my projects since I learned about it before CC0 and it's now a habit.

AFAICT, the perception of Unlicense is becoming better. It was receiving weird looks some years ago, mostly because of its name ("Unlicense? You can't un-license something") but once past that, the contents are satisfying enough and it's been better accepted.

Remind that it's just a data point though. #notALawyer

> but reserves my right to file a patent.

The Unlicense also does not include a patent grant, so is no different than CC0 here, and as the FSF says, CC0 is generally recommended over it.

It doesn't really reserve your right to file a patent (because that's basically gone once you publish something in most cases), but it doesn't imply a license to patents you do hold when publishing.

"It doesn't really reserve your right to file a patent (because that's basically gone once you publish something in most cases)"

This is also how I thought it works.

" but it doesn't imply a license to patents you do hold when publishing."

So since I do not hold any patents, stating just this, could be enough? That stuff gives you a headache

Rust and many projects using it dual license under Apache2 and MIT. The former for patents and the latter for pervasive OSS license compatibility.

Discussion: https://internals.rust-lang.org/t/rationale-of-apache-dual-l...

I would expect that open source developers will best know the implications of GPL and MIT licences, with LGPL, BSD* and Apache2 following next. I have personally never head of Unlicense before even though I was involved in many open source projects.

However, using CC0 probably won't do much harm either.

I wouldn't be nearly so scared from just using the MIT licence. It's simple, nearly everyone knows it (because a huge amount of projects already use it) and it's easy to google for whoever doesn't. Don't do something exotic if you actually don't have specific needs.

This. Unusual licenses are more hassle than established ones, even if the unusual one tries to be less restrictive.

Is this even possible (in the USA)? I mean, you can put "this code is in the public domain" in your source code, but that may not legally have any effect whatsoever. The whole legal environment around copyright and public domain is completely contorted.

What I gathered so far seems to imply, that yes, in the US you can do this. But in germany or france for example, you cannot. So since I live in germany, this is very annoying: I am against licences out of idealism, but I am not allowed to do so. The only legal way to have my original work in the public domain would be dying and wait 70 years.

One thing about a licence is that you can and should include a NO WARRANTY clause. This can shield you from nuisance lawsuits.

A no warranty clause isn't going to protect you from a nuisance shakedown. Slapping no warranty onto something doesn't stop someone from bringing a frivolous lawsuit against you, it jsut makes it easier to defend. If it's a frivolous lawsuit then it won't hold out in court anyway, but by that point you've already had to defend yourself against it, which is where all the hassle is.

there's the DWTFYW license (Do What the F--- You Want)

On the topic of joke licenses (I’ve seen DWTFYW used before, but don’t think it helps anyone legally):

The “Ultimate Liberty” License, STM’s infectious proprietary license:

> 5. No use, reproduction or redistribution of this software partially or totally may be done in any manner that would subject this software to any Open Source Terms. “Open Source Terms” shall mean any open source license which requires as part of distribution of software that the source code of such software is distributed therewith or otherwise made available, or open source license that substantially complies with the Open Source definition specified at www.opensource.org and any other comparable open source license such as for example GNU General Public License (GPL), Eclipse Public License (EPL), Apache Software License, BSD license or MIT license.

https://www.st.com/content/ccc/resource/legal/legal_agreemen...

JFYI, my (humble) Careware one is similar, though more gentle, no idea how it came up on dejacode:

https://enterprise.dejacode.com/licenses/public/careware/#es...

https://enterprise.dejacode.com/licenses/public/careware/#li...

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