advertising clauses

[Brian Behlendorf]

On Thu, 2 Sep 1999, Nick Moffitt wrote:
> Quoting Justin Wells:
> > Can the requirement of providing advertising in the original BSD
> > license be thought of as consideration?
> > 
> >    "In consideration of providing us with valuable advertising of
> >     our product, we grant you.."
> 
>         Perhaps, except that that restriction was removed from BSD
> itself:
> ftp://ftp.cs.berkeley.edu/pub/4bsd/README.Impt.License.Change

Stig likes to point out in his license presentations that the advertising
clause is what led to Berkeley prevailing over AT&T in the lawsuit a few
years back - AT&T was using BSD code without notifying its customers of
that fact.  He claims without it, we might not have any BSD code in the
free software space.  If this is incorrect, let Stig know before it ends
up in a book somewhere.  =)

As someone who also has suffered the slings and arrows of people who
complain about the advertising clause in the Apache license, let me
provide a very weak defense for it, by starting with the GPL.  

The GPL essentially contains an advertising clause - itself.  The GPL must
be redistributed with derivative code.  Stallman himself says it is very
important for people to know, when they receive GNU software, that their
interests are protected by the GPL, and to be aware of the broader
philosophical context which provides them with that code.  Among the most
important reasons to do this, I feel, is to discourage forks.  

The ability to fork is essential, but otherwise, people should be
encouraged to contribute "upstream" to the main project rather than fork
it themselves for convenience or ignorance.  I think this is indisputable.

Since the BSD and Apache license are so permissive in respects to
redistribution of derivatives, it's entirely possible for a redistributor
to remove all attribution in the codebase.  They have to include the
license somewhere in the distribution, but most end users never
traipse around the installation directory looking at random files.  So
most would never be aware that the software they are using has an upstream
source.  I would consider this a bad thing.

What really should happen to such a clause is a clarification -
"advertising" is certainly quite broad, and it's a valid legal question
whether a TV ad or a web ad banner would have to include it.  I think such
a clause needs to be clarified; one way to clarify it might be to state
that such a notice only needs to appear "in end-user documentation, and/or
wherever such third-party notices normally appear".  I.e., when Netscape
starts up, it shows a screenful of notices about other software it
incorporates.  However, server-side software generally has no such
splash-screen, so "in the documentation" would probably have to suffice.

Thoughts?

	Brian