The Copyright Act preempts the BSD license

Ben Reser ben at
Thu Feb 12 00:13:35 UTC 2004

Given the email address and the similarity to the language used in the
debate about the GPL and the Copyright Act on debian-legal I'm tempted
to ignore this as a troll.  However, I think this should be responded to
so as to avoid confusion.

Also to some extent it seems like a ruse to get someone to say something
that would be contradictory to the argument that the GPL isn't preempted
by the copyright act.

Further, I don't think this discussion is particularly appropriate for
this list.  As the charter of the list is to discuss licenses for
approval by OSI as meeting the OSD.  Not determining if the licenses are
preempted by the Copyright Act.

On Wed, Feb 11, 2004 at 01:01:24PM -0800, BSD Protector wrote:
> 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.

No they don't.  They don't say a darn thing about the contributing
authors rights.  That's a matter left entirely up to copyright law.

Let's say you take and modify some BSD licensed piece of software to add
some functionality.  Your additions when combined with the original
would be a derivative work and must carry the appropriate license
terms and notices with it regarding the copyright of the original work.

However, you can take that code that you wrote and put it in some
non-BSD licensed work then that *MAY* not be considered a derivative
work and you wouldn't have to carry those terms or notices.  The
interpretation of what constitutes a derivative work varies from circuit
to circuit, so it's difficult to give a definitive answer when you would
or wouldn't have to include the terms and notice.

This does not constitute a condition upon your exclusive rights that
isn't embodied in copyright law already anyway as I'll show below.

> 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.

Nope the BSD license is a bare license.  There's no contract.  It's
simply the permission to do something.  While at the same time
specifying that you aren't given permission to do some other things
and as a consequence are required to do certain things.

> 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.

This is already required by Section 1202.  You can look at this
requirement as the copyright owner saying that while you are allowed to
redistribute the modified work you are not being given permission to
remove the copyright notice and terms of use.  
> 3. All advertising materials mentioning features or
> use of this software must display the following
> acknowledgement:
>           This product includes software developed by
> the University of California, Berkeley and its
> contributors. 

This clause was rescinded by the University of California, Berkeley and
is no longer part of the license. 


> 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.

This is already the law anyway.  So again this can be viewed as simply
stating that you aren't being given that permission.  But this isn't a
copyright issue.  So really has nothing to do with your analysis.

> 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
> author.
> 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.

The imposition of the "use the same conditions" is only applicable to
the material under the original copyright.  The BSD license makes no
stipulations as to the license terms of your work.  And the terms of the
BSD license that you state are really already embodied in law anyway.
It would have been better if the license said that they didn't give you
those rights as opposed to saying that you couldn't do that.  But really
you can't do those things anyway without their permission.  So the
distinction is irrelevant.

Further, I think your misunderstanding 301.  It doesn't say that a state
can't enforce federal law.  It's saying that a state can't grant any
equivalent right on top of the federal law.  I don't think this has any
effect upon contract terms (if there were any).

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

Not really, the terms included in the BSD license are essentially
restatement of law.  None of these requirements would really go away if
the terms were removed from the license.

Usual disclaimers apply, IANAL, TINLA.

Ben Reser <ben at>

"Conscience is the inner voice which warns us somebody may be looking."
- H.L. Mencken
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