Subject: Re: Implications for switching licenses mid-stream
From: Chuck Swiger <chuck@codefab.com>
Date: Wed, 23 Apr 2008 13:15:26 -0700

On Apr 23, 2008, at 11:56 AM, Rick Moen wrote:
> Quoting Chuck Swiger (chuck@codefab.com):
>> Woah, Nellie!  Ben's entire posting was "If I reissue the work with
>> nothing changed [but] the copyright statement,
>> the work has been modified so isn't it now a derivative work?"
>
> I'm sorry that I don't have the substantive prior thread in front of  
> me.

Mailing list archives make this an easily solvable problem.  :-)

> The situation I believed we were speaking of involved a collective
> work's change of licence; thus Ben Tilly's reference to coverage of  
> that
> topic in the Raymonds' Licensing HOWTO.

Jon Lesser's original concern was: "Many people have already  
downloaded our software with license X.  Can those people continue to  
use what they've downloaded under the terms of X even after we change  
the license to Y?  The X and Y cases I'm particularly interested in  
are X=BSD, Y=GPLv3 and X=GPLv2, Y=GPLv3."

The commonly-agreed answer to this was that if someone (legitimately)  
has the code under license X, they can always continue to use that  
code under license X, even if the project decides to change to license  
Y. [1]

This is discussed in more detail at: http://catb.org/~esr/Licensing-HOWTO.html#id2787981

More specifically, with regard to Ben's claim that "In the case of BSD  
to GPLv3 you don't need explicit permission from
anyone because the BSD already grants sufficient provision.", note  
that this HOWTO document states:

"Note, however, that an `upgrade' from a copyleft license to a non- 
copyleft license (or vice-versa) would be a different matter. If you  
are a GPL partisan, you would be injured by a move to a non-GPL  
license, and vice-versa. These changes are not safe and could be  
causes of legal action for copyright infringement by a holder of  
registered copyright (who therefore does not have to meet the actual- 
damages test). Holders of unregistered copyright would have no  
standing except by registering the copyright after the fact of  
infringement, and then would have to meet the difficult actual-damages  
standard."

>> I can't reconcile Ben's hypothetical example: where a third party who
>> has made no changes to the copyrighted material itself, but only to
>> the copyright statement [...]
>
> The phrase "changes to the copyright statement" seems a bit
> non-specific, and might be where we're having a problem.  Obviously,
> changing attributions is at best deeply unethical and might well  
> commit
> various sorts of frauds and (depending on situations) contract
> violations, not to mention being a very scummy deed.
>
> (Oddly enough, in US law, that scummy deed doesn't violate _copyright_
> law, as was called to my attention a couple of months ago.)

See http://www.law.cornell.edu/uscode/17/usc_sec_17_00000506----000-.html

"(d) Fraudulent Removal of Copyright Notice. -- Any person who, with  
fraudulent intent, removes or alters any notice of copyright appearing  
on a copy of a copyrighted work shall be fined not more than $2,500."

...or per the Berne Convention, Article 6bis:

"(1) Independently of the author's economic rights, and even after the  
transfer of the said rights, the author shall have the right to claim  
authorship of the work and to object to any distortion, mutilation or  
other modification of, or other derogatory action in relation to, the  
said work, which would be prejudicial to his honor or reputation."

Regards,
-- 
-Chuck

[1]: At least, this will be true for all of the OSI-approved licenses.