Opinion on this "license"?

[Ben Tilly]

First note that I am not a lawyer and cannot give legal advice.  If
you want actual legal advice, ask a lawyer.

On 10/12/06, Gene Smith <gene.smith at siemens.com> wrote:
> "This Software is Freeware. It is distributed for free. You may copy,
> modify and use it for free as well as distribute it to others. You may
> only distribute it as a whole, unmodified and with all trademarks and
> copyright notices. You may not distribute it commercially (e.g. as a
> Share-/Freeware-Distributor) without the express written permission of
> Yoyodynaics, Inc. SINCE THIS SOFTWARE IS DISTRIBUTED FOR FREE,
> IT IS PROVIDED "AS IS" WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY
> KIND EITHER EXPRESSED OR IMPLIED INCLUDING BUT NOT LIMITED TO IMPLIED
>
> WARRANTIES FOR MERCHANTIBILITY OR FITNESS FOR USE. ANY USE OF THE
> APPLICATION EXAMPLE IS ON YOUR OWN RISK AND RESPONSIBILITY.
> If you happen to find any faults in it please tell us."
>
> This pertains to a kernel driver for a proprietary board. Could this be
> distributed with other GPL code? I think they are saying you can modify
> it for your own use but if you distribute it it must remain intact.  But
> then they say you can't distribute it commercially as Share-/Freeware.
> What does this mean? Linux and other programs can be distributed
> commercially by companies but are not called share/freeware except by
> the clueless. So what does this mean?

Good questions.  Clearly you can't resell their program.  But could
you include it on a CD that is being sold commercially?  I don't know
that you can.  You could ask.

> Possibly it would be OK to distribute this code unchanged with other GPL
> files but run patches on it during the build to incorporate any
> necessary changes in the final program.

Who owns copyrights on those patches?  If the patches are long then
I'd expect that Yoyodynanics would have a copyright interest in the
patches, and therefore you'd need their permission (which this license
does not give).  Furthermore after you compile it, the binary will mix
the GPL with this code and I'd expect the licensing on that to be
*very* touchy.  (Namely you have no permissions at all.)

My inclination would be to assume nothing.  Instead I'd tell them what
you want to do and get their express permission to do so.

Cheers,
Ben