Subject: Licensing as (BSD+sting in tail) with option to relicense under GPL ?
From: Michael Sparks <zathras@thwackety.com>
Date: Mon, 13 Sep 2004 01:45:15 +0100 (BST)

Hello,


I usually use the 3 Clause BSD license(*) when releasing my personal
work as open source software. The reason I use that license is due to
it being GPL compatible, and it having a long well known history.
   (*) Specifically this version:
       http://www.fsf.org/licenses/info/BSD_3Clause.html

Getting to the point, I have been considering adding a clause to this
_along the lines_ of:

"""Additionally, your rights under this license become null and void
   should you sue any person or persons due to their contribution to
   or  distribution of any project distributed under an Open Source
   license as agreed by the Open Source Initiative. A list of current
   licenses defined as open source by the Open Source Initiative can
   be found at: http://www.opensource.org/licenses/index.php
"""   (Yes, I'm not a lawyer, I know this needs cleaning up... :-)

Having read the thread from March 2003, regarding "Compatibility of the
AFL with the GPL" (*) I'm pretty sure that this would break compatibility
with the GPL (either in practice, or at least make things sufficiently
unclear to make things nasty or just cause arguments).
   (*) OK, great big huge argument... http://tinyurl.com/4k97c

The 2 questions I have are this:
   1 Would such a changed license (BSD + mutual patent defense) still be
     open source (assume wording of the intent here was tight enough) ?

   2 If I chose the same trick the Mozilla Public License 1.1 uses to
     ensure compatibility with the GPL - specifically by allowing the
     whole or part work to be GPL'd by anyone, then would the licensing be
     GPL compatible?

I think the answer to both questions is yes - 1 doesn't add any
restrictions onto people that any already OSI validated license has
(Indeed, it is more permissive than many). Regarding 2) it allows anyone
to relicense the whole thing under the GPL if they wish, and hence it's
entirely GPL with no patent termination clause taint.

The rationale here is simple:
   * This allows someone to use the source in a closed source form unless
     they sue an open source or free software project for software patent
     infringement.

   * If they do that, then any modifications/changes they have made must
     be redistributed under the GPL, OR they will be infringing copyright.
     (When termination of the BSD style license kicks in, they can choose
     to redistribute/modify under the terms of the GPL instead)

I'm not sure how to tighten this up at this stage in such a way
that doesn't allow the phrase to be construed as encouraging patent
infringement, but speaking as a spare time developer and not as a
lawyer the idea of a mutual defence mechanism strikes me as beneficial
and the above looks to my non-legal eyes like one way of achieving
this.

Any and all feedback welcome,

Best Regards, and thanks,


Michael Sparks.