For Approval: GPLv3

Matthew Flaschen matthew.flaschen at
Wed Aug 29 20:04:44 UTC 2007

Chris Travers wrote:
> Hypothetical:
> Company A releases a product under the GPL, but includes three files
> under the BSDL.  Although the files are unaltered and the BSDL notice
> remains the files are listed as licensed under the GPL.
> Company B takes those BSDL files, assumes they are unaltered,
> and uses them in another propietary product.  One of Company B's developers
> states that the files were copied from the GPL distribution, and company
> A sues arguing that the proprietary product is an illegal derivative
> wrok.  Company B's defense is that they have not infringed on any of
> Company A's copyrights and therefore company A both lacks a claim of
> infringement and lacks standing to bring a claim.

This defense is completely valid, and it would be pointless for Company
A to sue.

> They then only after the fact go back and confirm that no changes have been made to these
> files.  Since the GPL states that acceptance is not required of the
> contract,

Acceptance is always required for a contract.  GPL says acceptance is
not required because of the FSF's interpretation that it is a unilateral
copyright license. I.E. you don't have to accept it but if you don't and
infringe copyright, expect a lawsuit.

> In my view, this would bring the GPL into play because company A
> licensed those *changes* under the GPL and company B misappropriated
> them without permission.

I agree with this interpretation.

> In short "relicensing" may not extend the GPL's reach into original BSDL
> fragments without alteration.

Well, Company A's product is entirely GPL either way.  But if the BSD
code is unaltered, Company A has no practical way (or reason) to prevent
anyone from using the BSD code under BSD.

 under the original BSDL.  In essence one can only add additional
restrictions to BSDL code by adding
> copyrighted components (including but not limited to code) which are
> encumbered by further restrictions.


> The question about the GPL3 is "what does it mean to remove additional
> permissions?"  Does this mean "allow for encumbering changes to be
> added?"  Or does it mean actually to remove permissions granted by other
> licenses?

It means, essentially saying the additional permissions don't apply for
this distribution.  As you've pointed out, this is pointless and
unenforceable if the upstream code isn't modified.  But it's /not/ a
violation of permissive licenses.

> In the first case, the GPL3 may be compatible with any
> license that grants a superset of rights and does not extend to
> derivative or collected works (that would seem to include the MS-PL)

No, MS-PL does grant a superset of rights.  The problem is specifically
with the "you may do so only under this license" which prohibits
sublicensing.  This "only" clause is unprecedented in permissive licenses.

> and in the second case, it is incompatible with every other license out
> there.

That's not true.  BSD/MIT/etc. allow you to add license restrictions
(remove permissions) to your distribution; as you note, you'll only be
able to enforce these restrictions if you've added copyrighted code.

Matt Flaschen

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