The Copyright Act preempts the BSD license

BSD Protector bsdprotector at
Wed Feb 11 21:01:24 UTC 2004

I have a great concern related to the validity of the
BSD license. I think this license is preempted by the
copyright law itself.

When the license
( says:

"Redistribution and use in source and binary forms,
with or without modification, are permitted provided
that the following conditions are met:"

it is quite clear that some kind of conditions are
imposed on the person that wants to distribute this
work with (or without) modifications (i.e. derivative
work). This would mean that the original author
conditions contributing author's exclusive rights.
This is not possible by definition.

In order for the derivative to be distributed at all,
the original author and the contributing author have
to form a contract, a binding legal form, to agree on
the distribution of the derivative work. This makes
this license quite clearly a contract.

But now comes the really scary part. Although the
contributing author might choose a different license
for the derivative work, he must obey the original,
BSD license, in all respects. The license demand
following conditions to be met:

1.  Redistributions of source code must retain the
above copyright notice, this list of conditions and
the following disclaimer.

2. Redistributions in binary form must reproduce the
above copyright notice, this list of conditions and
the following disclaimer in the documentation and/or
other materials provided with the distribution.

3. All advertising materials mentioning features or
use of this software must display the following

          This product includes software developed by
the University of California, Berkeley and its

4. Neither the name of the University nor the names of
its contributors may be used to endorse or promote
products derived from this software without specific
prior written permission.

If the new license the contributing author has chosen
for the redistribution doesn't allow the recipient to
distribute, nothing happens at all (copyright is
simply not involved in any way). However, if the new
license permits the distribution of any kind (intact,
modified, source, binary or a combination), the
conditions listed above and the original copyright
notice have to appear  as demanded by the original

The intended effect of this imposing the "use the same
conditions" requirement for *all* future successor
authors and not just the two original contracting
parties (authors in privity), is a "universal
privity", where original contractual terms are binding
on all third party strangers to the original author.
Since the BSD license terms are about copyright
matters and enforced under state laws, this is
forbidden by Congress in section 301.

I think we can safely say that BSD license is indeed
preempted by the Copyright Act.

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