Legal Team/Decisions/Dealing with Public Domain within SPDX Files

The SPDX Legal Team is asked from time to time to add a standard entry on the SPDX License List for content that claims to have been placed in the “Public Domain.” We have concluded that such a blanket determination on this subject does not comport with the purpose or role of SPDX or the SPDX License List, for the following reasons:

1. SPDX seeks to simply organize and communicate information, not make legal conclusions. Any legal judgments required when dealing with open source – regarding ownership, infringement, compliance, breach, etc. – are necessarily left to individual users and their legal counsel.
2. “Public Domain” is a concept distinct from copyright licensing; it generally means that the work no longer has any copyright protection or ownership, and therefore requires no license permission in order to use, copy, modify, distribute, perform, display, etc. In the United States – and many jurisdictions – copyright protections attach automatically to creative works upon creation if they satisfy certain minimum criteria. “Public Domain” would thus represent a significant change to the legal status of the work.
3. The rules around “Public Domain” often vary or are unspecified jurisdiction to jurisdiction. Adding to the confusion, some jurisdictions may not even recognize the concept of “Public Domain” (or similar). As such, a license may nevertheless be required or implied in these cases. Even in the U.S., there is no clear, officially-sanctioned procedure for affirmatively placing copyright-eligible works into the “Public Domain” aside from natural statutory expiration of copyright. The bottom-line is, there are few if any objective, brightline rules for proactively placing copyright-eligible works into the Public Domain that we can broadly rely on.
4. As a result of this lack of uniformity, attempts to make Public Domain grants are at this time largely ad hoc, and vary widely in approach. They range from simple statements (“this work is hereby placed in the Public Domain”) to extensive claims about signed affidavits from all contributors disclaiming ownership over their work. More confusingly, some supposed “Public Domain” grants are actually worded like licenses, and appear to retain rights and grant permissions. In other words, it is difficult for third parties and downstream recipients to really know if – and to what extent – such claims over the change in legal status of a work are valid, enforceable, revocable, etc., and making such determinations is largely a legal judgment call.
5. Having a generic identifier with no corresponding license text to match to places the burden on the SPDX user to make a legal interpretation to determine whether the software is indeed public domain. The goal of the SPDX License List is to avoid such interpretations, but to provide a list of vetted short identifiers and license text than can be definitively matched, whether by using the efficiency of automated processes (i.e. scanning tools, etc.) or human eyes.

Due to the foregoing reasons, the SPDX Legal Team will continue to treat each unique “Public Domain dedication” in the same way as any license is treated in the standard. We believe this is the safest, common assumption that can be made regarding this type of material. Some commonly used “Public Domain dedications” have already been included in the SPDX License List (e.g., ANTLR, Sax, CC-0), and others may be added to the List using the Process for Requesting New Licenses be Added. "Public Domain dedications" that are not on the SPDX License List will be treated as would a license not found on the SPDX License List via a license reference (see section __ of the Spec)/

last updated 11 April 2013