For Approval: GPLv3

[Matthew Flaschen]

Chris Travers wrote:
> (though the affect is minimal in the first case since the GPL gives a superset

It grants a subset, which is permitted by BSD.

> Hence even if I "only leave the notice of
> the license and relicense under the GPL" the original elements of the
> code which have not been substantively altered do not become, as a
> practical matter, encumbered by the GPL simply because I do not have
> rights to enforce it.

No, as a practical matter you can't enforce the GPL restrictions unless
you have original code under the GPL.  Nevertheless, the program is
validly under the GPL, and everyone is safe in treating it like any
other GPL program.  The BSD author can't go after them because they're
well within it's boundaries.

> For this reason, I have *no* idea what it means to, in the process of
> conveying, remove additional permissions (section 7, second paragraph). 

It just means you're not deliberately passing the permissions along.
Now, the permissions are probably still granted directly from the BSD
author to the recipient if the program is unmodified.  But you're not
playing any part in that.  As far as you're concerned, you've made your
distribution GPL (as allowed by BSD).

> Such a removal of permissions would either be meaningless

It's not effective, but licensing is never effective if you don't own
any code (as with this hypothetical direct relicensing).  But it is
legal for the relicensor.

> might be compatible with the MS-PL), or it could be in conflict with
> every license out there by mandating controls over copyright permissions
> that nobody else has the right to mandate.

I assure you.  GPLv2 or GPLv3 is compatible with BSD, MIT, Apache, and
many other permissive (and a few non-permissive licenses).  This is a
known and accepted consequence of these licenses.

> I want to explain one other thing-- people have brought up the issue of
> proprietary software including BSD code again and again.  The approach
> above would suggest that the BSD code is used with permission and is
> therefore not subject to the copyrights (prior to substantive
> alteration) of the proprietary vendor.  

> However, the work as a whole becomes encumbered with the license on
that portion, so the license must
> be followed.  In short, Sun never "relicensed" the BSD code.  They just
> encumbered it in works under closed source licenses.

If the work as a whole is under SUN PROPRIETARY EULA (SPE), that means
the BSD code is also under SPE.  That means the BSD code is relicensed.

> This distinction while usually only
> technical becomes relevant with regard to the GPL3 because of the
> ability to remove additional permissions from any portion of the work or
> corresponding source without the need to show that any copyright
> protected elements were added.

This isn't specific to the GPLv3.  I can make an unmodified, binary-only
distribution of a BSD game and add (keeping the BSD license notice) my
own proprietary EULA.

Now, can I enforce the EULA in court?

  No, because I don't have any code.

Can everyone still get permissions to copy the BSD code directly from
the original licensor?

  Yes, and they can even apply it directly to my distribution if they're
sure I haven't changed anything.

Is there any practial point to adding the EULA?

  No.

Does it violate BSD?

  No.

> In short, I haven't yet been able to link the details of copyright law
> that everyone seems to agree with

The details here are simple.

BSD allows me to do essentially anything that would normally violate the
BSD author's copyright, as long as I follow the 3 conditions.

Sublicensing and distributing under GPLv3 would normally violate the
copyright, but BSD allows it (and there's no violation of the conditions).

> One would think that these areas would not be
> subject to copyright independantly just because two people translated
> three lines out of a hundred the same.

Independent creation doesn't infringe copyright.  Thus, if I set an
infinite number of monkeys at work typing, then reach in at a random
time, and miraculously it's a copy of a recent best-selling novel, I (or
maybe the monkeys) hold copyright on this copy.

Now, it will be hard to prove I didn't actually copy the novel.  But if
I can, I can license it however I please.

Independent creation is however not a defense to patent infringement.

Matt Flaschen