--- title: Public Domain Over Open Source section: Ora — Foundation arguments status: review description: Open source has been the public domain's working substitute for thirty-five years. Why they are not the same, and why Ora chooses the public domain. authors: - The Ora Foundation downloads: md: /papers/white/public-domain-over-open-source.md license: https://creativecommons.org/publicdomain/zero/1.0/ --- # Public Domain Over Open Source Open source has been the public domain's working substitute for thirty-five years. The two are not the same thing. ## The substitute Free and open-source licenses — GPL, AGPL, MIT, BSD, Apache — operate by using copyright as a lever. The licensor holds copyright. The license grants permissions on conditions. Compliance with the conditions is enforced through the same legal apparatus that would otherwise be used to enforce a proprietary copyright claim. Copyleft licenses preserve openness by requiring derivatives to remain open. Permissive licenses preserve attribution by requiring it on derivatives. Both are tools that depend on copyright being real. This has worked well, mostly, for thirty-five years. The Free Software Foundation built the GPL. The Open Source Initiative shepherded a constellation of compatible licenses. The Apache Software Foundation, the Linux Foundation, Software Freedom Conservancy, Software Freedom Law Center, the Electronic Frontier Foundation — a stack of institutions exists to defend the licenses' force when they are challenged. The result has been a working substitute for what an actual public domain would have been if jurisdictions and institutions and the legal system had supported it directly. But it is a substitute. The mechanism it works through — copyright enforcement on conditions — is exactly the mechanism that proprietary software uses against users. The defenders of free software wield copyright as a tool of openness; the same tool is wielded against openness in other hands. The licenses are conditional grants of permission, and conditions can be challenged, disputes can become enclosure pressure, and the compliance apparatus has to be tended continuously. ## What CC0 is Creative Commons CC0 1.0 Universal is the strongest public-domain dedication available. Where other Creative Commons licenses grant permissions on conditions (BY for attribution, NC for non-commercial use, ND for no derivatives, SA for share-alike), CC0 dedicates the work to the public domain to the maximum extent permitted by law. There are no permissions to grant because there are no rights left to grant permissions over. Anyone can use, modify, distribute, build upon, fork, or republish a CC0 work, for any purpose, on the same terms. Commercial use. Modification. Redistribution. Inclusion in derivative works. Use in jurisdictions hostile to public-domain dedication, to the extent local law allows. The dedicator releases all rights to the maximum extent permitted, including the right to be attributed. The Foundation is steward, not owner. It does not hold copyright in the artifacts it stewards. It cannot license what it has dedicated to the public domain. It cannot license at all. ## Why this is structurally different Three structural differences from open source matter for the Foundation's work. **No condition can be challenged because there are no conditions.** A copyleft license can be defied — by a commercial actor who wants to use the code without complying with the openness condition. The defiance has to be answered through copyright enforcement, which means litigation, which means cost, which means the Foundation has to either bear the cost or accept the violation. CC0 has no condition. There is nothing to defy. There is nothing to enforce. **Public-domain dedication is irreversible.** A copyleft license can be revoked by the licensor as to future works, and there are scenarios where compliance disputes lead to messy questions about which versions of which artifacts are still open. CC0 cannot be revoked. The dedication, once made, is permanent. No future entity — including the Foundation, including its successors, including any party that acquires the Foundation's assets, including any successor to a successor — can re-enclose what has already been freed. **The licensing apparatus does not need defending.** A copyleft license requires institutional infrastructure to remain effective: the licenses themselves need to keep up with changes in copyright law; the enforcement organizations need funding; the test cases that establish the licenses' force need to be brought; the defense bar that handles the cases needs to be maintained. CC0 needs none of this. The dedication takes the apparatus off the table. The Foundation does not have to maintain a license-enforcement capacity it would otherwise need. These differences accumulate. They are not equivalent in some narrow technical sense; they are different commitments at the legal-architectural level. ## The cost CC0 has costs that copyleft licenses avoid. Anyone can use the artifacts in proprietary products without contributing back. A commercial actor that takes a Foundation-stewarded framework, wraps it in a closed product, and sells access to the closed product is doing something that copyleft would have prohibited and CC0 permits. The Foundation accepts this cost because the alternative cost — maintaining a copyleft enforcement apparatus, dealing with the licensing-compliance theater that copyleft requires, running the risk that a license condition gets challenged in a jurisdiction where the challenge succeeds — is higher. The cost is also less load-bearing than it appears. A commercial actor that wraps a CC0 framework in a closed product is competing against the same framework available freely from the Foundation. The closed product's value proposition has to come from something the framework alone does not provide — service, integration, support, brand. If the closed product is just the framework with a fee gate, users can get the same thing for free. The market disciplines this. The cost would be more load-bearing if the Foundation's artifacts were the kind of thing where commercial enclosure adds substantial value. Software libraries that get bundled into proprietary products at scale benefit from copyleft because the bundling is an enclosure that copyleft prevents. Frameworks released as natural-language specifications cannot be bundled the same way; the framework is its own delivery surface, and a closed product that includes a CC0 framework still has to deliver the framework's value to compete. ## What this is not CC0 is not anti-copyleft. The Free Software Foundation, the GPL, and the institutions that defend copyleft have produced enormous value over decades. The Foundation's choice does not entail a critique of copyleft as a strategy; it entails a different strategy chosen for different reasons. CC0 is not naïve about enforcement. Trademarks remain. The Foundation registers trademarks on its name and on certification marks used to identify authentic releases. Trademark rights, where established, are used solely to prevent confusion about the source of artifacts — not to restrict use, modification, or redistribution of the underlying public-domain content. Anyone can state truthfully that their work is derived from or compatible with Foundation-stewarded artifacts; trademark rights would only constrain false implication of endorsement. CC0 is not the same thing as everything-goes. The Foundation maintains the canonical framework library; it accepts contributions that meet its specifications and rejects contributions that do not. Quality control happens through review against published specifications. Forking, modifying, and developing alternative collections are welcomed; entering the canonical library requires meeting the specification standard. ## Why this matters The Foundation's work depends on what it stewards remaining free. Open-source licenses are a working substitute for that, but they require continuous defense and they depend on institutions that may or may not survive, on jurisdictions that may or may not honor them, on enforcement bandwidth that may or may not be sustained. CC0 dedicates the artifacts to the public domain in a form that does not require continuous defense and does not depend on the licensing apparatus continuing to function. The choice is structural. The Foundation chooses CC0 because it makes enclosure attempts pointless in advance: there is nothing to acquire that is not already free. Conditions on use — even conditions as light as attribution — are conditions, and conditions can become disputes, and disputes can become enclosure pressure. A public-domain dedication has no condition to challenge. The Foundation's leverage is not control over the artifacts. It is the trademark on the Foundation's name, the partnerships through which legal defense is available when artifacts come under attack, the practice of defensive publication that expands the prior-art record faster than enclosure attempts can occur, and the active community of contributors whose work compounds. None of these depends on the licensing being copyleft. All of them work the same — or better — under public-domain dedication. That is the rationale.