Subject: RE: BSD-like licenses and the OSI approval process
From: "Lawrence Rosen" <lrosen@rosenlaw.com>
Date: Fri, 12 Oct 2007 18:41:21 -0700

Chris Travers wrote:
> I am not a lawyer and you are, so perhaps you could enlighten me, John
> Cowan, and others who question why we should assume the BSDL is
> divisible?

Chris, please note that I never once used the word "divisible." I have no
idea whatsoever what that word means for a copyrighted work. Rephrase your
question, but please do it privately to me to avoid cluttering the list. 

As for the public portion of my response:

Read almost every BSD license. "Redistribution and use ... are permitted
provided that the following conditions are met." I can assure you, I'll meet
those conditions when I combine those BSD-licensed works into an AFL
3.0-licensed collective or derivative work. I'll be just as careful as FSF
is when it combines BSD works into GPL programs, and as Microsoft and IBM
are when they combine BSD works into proprietary works. 

My reply to John Cowan earlier today addressed what I think your question is
about. But let me say it a different way: As I wrote in my book, the BSD
license certainly is not expressly sublicenseable. It is a crappy license
partly for that reason, and it disappoints me that people continue to use
that license even though it lacks so much. But the reality is that we
already have lots of software under BSD-like licenses, software that is
incorporated into other open source and proprietary software around the
world. Everywhere people take BSD software and incorporate it into other
collective and derivative software works, and nobody has ever complained
about the public's right to do so, or about the fact that another license
usually surrounds the BSD-licensed work. Ever. 

In that context, why are we still arguing about "sublicensing"? Is it still
a legal concern for BSD-licensed software?

One thing we can do is to take advantage of these common interpretations of
the BSD-like licenses and redistribute those works under a more mature open
source license, in the process eliminating (for all practical but not legal
effect) hundreds of slightly different BSD-like licenses that do nothing but
confuse the public. 

Certainly one can do that mechanically, as several here have suggested, and
you'll get a mechanical compendium of BSD-licensed software on which you can
claim a very thin collective work copyright. Or one can add some
intelligence to the compendium, some guidance as to how to use the software,
and some sophistication in its collection and organization. Combine that
with appropriate warranties and representations, an audit trail and
indicators of provenance, and I predict that such a copyrightable collective
work under AFL 3.0 would resolve the BSD license proliferation problem to
the satisfaction of most open source customers in the world.

That can be done without OSI's further involvement or indeed the further
involvement of the people on this list. No more BSD-like licenses need to be
approved (absent, of course, an appropriate justification!). My point is
that OSI shouldn't try to approve every BSD-like license in the world, but
we should find another way to give comfort to customers about BSD-like
license terms.

/Larry


> -----Original Message-----
> From: Chris Travers [mailto:chris.travers@gmail.com]
> Sent: Friday, October 12, 2007 5:18 PM
> To: License Discuss
> Subject: Re: BSD-like licenses and the OSI approval process
> 
> On 10/12/07, Lawrence Rosen <lrosen@rosenlaw.com> wrote:
> 
> >
> > It could be. But then I would not claim that each item in the collection
> is
> > also available under the terms of AFL 3.0, which was my whole purpose
> for
> > collecting BSD-licensed software--under hundreds of BSD variants--into
> my
> > collection in the first place.
> 
> Correct me if I am wrong, but this presupposes:
> 1)  The BSDL in every variant you have entered allows for
> sublicenses(a point you, yourself, have stated is unclear), and
> 2)  The BSDL in every variant you have entered is divisible (i.e. that
> a sublicense issued under its authority does not have to pass on the
> complete package of terms it grants to downstream recipients of the
> licensed copyrighted elements).
> 
> If either of those are false, the AFL would not govern the work, would
> it?  Or am I missing something?
> 
> 
> > I'm trying to address the BSD license
> > proliferation problem by replacing them all, for practical purposes,
> with
> > AFL 3.0, a professional open source license that accomplishes everything
> the
> > BSD licensors intended. I'm doing it because each of those BSD-licensors
> > said I could.
> 
> I am not a lawyer and you are, so perhaps you could enlighten me, John
> Cowan, and others who question why we should assume the BSDL is
> divisible?
> 
> Best Wishes,
> Chris Travers