Subject: RE: Dispelling BSD License Misconceptions (fwd)
From: "Lawrence Rosen" <lrosen@rosenlaw.com>
Date: Tue, 16 Jan 2007 18:58:24 -0800

Brian Behlendorf wrote:
> The need to "retain" the original license in any redistribution does not
> imply that any redistribution must be under that original license.  It is
> included to communicate to the recipient that some subset of the code,
> perhaps even all of it, was originally under that older license.  It
> doesn't preclude the possibility that there is a newer license, perhaps
> even to cover newer modifications or newer code.  Nor would a newer
> license prevent a recipient from exercising their rights around the older
> code under the older license.

Brian, I think you are absolutely right! 

> Is this a case, though, where 14 years of reading a particular body of
> text and being told what it's supposed to mean can cloud one's sense of
> what it actually says?

Your 14 years have served you well! That article may, for all I know, apply
to Australian law (although I doubt it), but it certainly doesn't apply to
U.S. copyright law. 

/Larry


> -----Original Message-----
> From: Brian Behlendorf [mailto:brian@collab.net]
> Sent: Tuesday, January 16, 2007 4:53 PM
> To: license-discuss@opensource.org
> Subject: Dispelling BSD License Misconceptions (fwd)
> 
> 
> This may be off-topic in so far as license-discuss is concerned, but since
> the quality of our analysis is important, I'd like to understand why
> reasonable minds may differ to such a degree that the following might be
> true.  Especially since IANAL and I'd like to think this was something a
> lay person could navigate...
> 
> In particular, I think his claim in his paper, section 3.3:
> 
>    It is likely that the reasonable person would read the license and
> think
>    that the licensor intended that the warranty disclaimer was to run with
>    the redistribution without qualification.
> 
> and then the immediate leap in 3.4 to:
> 
>    On this analysis, the warranty disclaimer travels with the distribution
>    and the distributor has no ability to qualify it.
> 
> is where the author goes astray, and with it the rest of the argument.
> The need to "retain" the original license in any redistribution does not
> imply that any redistribution must be under that original license.  It is
> included to communicate to the recipient that some subset of the code,
> perhaps even all of it, was originally under that older license.  It
> doesn't preclude the possibility that there is a newer license, perhaps
> even to cover newer modifications or newer code.  Nor would a newer
> license prevent a recipient from exercising their rights around the older
> code under the older license.
> 
> That suggests that no, the warranty disclaimer doesn't automatically apply
> to the redistributor.  Most redistributors who care about this issue have
> probably separately disclaimed their liability for any third-party
> software they are redistributing, and separately for any of their own
> code. Another angle to this is that a redistributor could establish a
> code-insurance business, whereby they sell policies that assume liability
> for someone else's code, because they've vetted the risk against the price
> they think people will pay for such a guarantee.
> 
> At the same time, I have sympathy for:
> 
>    What the court is looking to determine is what the reasonable person
>    (ie an idealized and dispassionate citizen who is called on to assess
>    the scope of the license) would make of the words.
> 
> Would a reasonable person who found the BSD license in a bundle
> of code assume that the notice applied to the whole thing?  Is that what
> the original Berkeley Software Distribution copyright holders intended by
> the word "retain"?
> 
> He continues the mistake of confusing sublicensing with relicensing, it
> seems, by saying in 3.5:
> 
>    Moreover, if anyone could license the code under different terms, then
>    any person redistributing the unmodified code could remove the warranty
>    disclaimer and other terms, removing the protections expressly included
>    by the copyright holder.
> 
> It seems to me that even if the license were modified, the protections
> would continue to exist for the copyright holder - if a redistributor
> removed the disclaimer and a recipient decided they needed relief, they'd
> seek that from the redistributor, and both the recipient and the
> redistributor would be unable to seek that from the copyright holder due
> to the original disclaimer from holder to redistributor.
> 
> I feel the author takes a further unsubstantiated leap when he says in
> 4.3:
> 
>    However, the original licensor has mandated specific wording to be
>    included which purports to apply to the code as a whole (ie as
>    modified).
> 
> I don't read BSD that way, and I don't believe most others do either.
> Someone reading it for the very first time, without being introduced with
> a description of what the BSD license is supposed to mean, though, might
> be forgiven for thinking this.
> 
> Is this a case, though, where 14 years of reading a particular body of
> text and being told what it's supposed to mean can cloud one's sense of
> what it actually says?
> 
>  	Brian
> 
> ---------- Forwarded message ----------
> Link: http://slashdot.org/article.pl?sid=07/01/15/1757235
> Posted by: ScuttleMonkey, on 2007-01-15 19:03:00
> 
>     [1]AlanS2002 writes "Groklaw is hosting an article by Brendan Scott
>     which looks at the [2]misconceptions surrounding the BSD license. From
>     the article: 'We observe that there exists a broad misconception that
>     the BSD permits the licensing of BSD code and modifications of BSD
>     code under closed source licenses. In this paper we put forward an
>     argument to the effect that the terms of the BSD require BSD code and
>     modifications to BSD code to be licensed under the terms of the BSD
>     license. We look at some possible consequences and observe that this
>     licensing requirement could have serious impacts on the unwary.'"
> 
> References
> 
>     1. http://alansplayground.spaces.live.com/
>     2. http://www.groklaw.net/article.php?story=20070114093427179