Dispelling BSD License Misconceptions (fwd)
brian at collab.net
Wed Jan 17 00:53:14 UTC 2007
This may be off-topic in so far as license-discuss is concerned, but since
the quality of our analysis is important, I'd like to understand why
reasonable minds may differ to such a degree that the following might be
true. Especially since IANAL and I'd like to think this was something a
lay person could navigate...
In particular, I think his claim in his paper, section 3.3:
It is likely that the reasonable person would read the license and think
that the licensor intended that the warranty disclaimer was to run with
the redistribution without qualification.
and then the immediate leap in 3.4 to:
On this analysis, the warranty disclaimer travels with the distribution
and the distributor has no ability to qualify it.
is where the author goes astray, and with it the rest of the argument.
The need to "retain" the original license in any redistribution does not
imply that any redistribution must be under that original license. It is
included to communicate to the recipient that some subset of the code,
perhaps even all of it, was originally under that older license. It
doesn't preclude the possibility that there is a newer license, perhaps
even to cover newer modifications or newer code. Nor would a newer
license prevent a recipient from exercising their rights around the older
code under the older license.
That suggests that no, the warranty disclaimer doesn't automatically apply
to the redistributor. Most redistributors who care about this issue have
probably separately disclaimed their liability for any third-party
software they are redistributing, and separately for any of their own
code. Another angle to this is that a redistributor could establish a
code-insurance business, whereby they sell policies that assume liability
for someone else's code, because they've vetted the risk against the price
they think people will pay for such a guarantee.
At the same time, I have sympathy for:
What the court is looking to determine is what the reasonable person
(ie an idealized and dispassionate citizen who is called on to assess
the scope of the license) would make of the words.
Would a reasonable person who found the BSD license in a bundle
of code assume that the notice applied to the whole thing? Is that what
the original Berkeley Software Distribution copyright holders intended by
the word "retain"?
He continues the mistake of confusing sublicensing with relicensing, it
seems, by saying in 3.5:
Moreover, if anyone could license the code under different terms, then
any person redistributing the unmodified code could remove the warranty
disclaimer and other terms, removing the protections expressly included
by the copyright holder.
It seems to me that even if the license were modified, the protections
would continue to exist for the copyright holder - if a redistributor
removed the disclaimer and a recipient decided they needed relief, they'd
seek that from the redistributor, and both the recipient and the
redistributor would be unable to seek that from the copyright holder due
to the original disclaimer from holder to redistributor.
I feel the author takes a further unsubstantiated leap when he says in
However, the original licensor has mandated specific wording to be
included which purports to apply to the code as a whole (ie as
I don't read BSD that way, and I don't believe most others do either.
Someone reading it for the very first time, without being introduced with
a description of what the BSD license is supposed to mean, though, might
be forgiven for thinking this.
Is this a case, though, where 14 years of reading a particular body of
text and being told what it's supposed to mean can cloud one's sense of
what it actually says?
---------- Forwarded message ----------
Posted by: ScuttleMonkey, on 2007-01-15 19:03:00
AlanS2002 writes "Groklaw is hosting an article by Brendan Scott
which looks at the misconceptions surrounding the BSD license. From
the article: 'We observe that there exists a broad misconception that
the BSD permits the licensing of BSD code and modifications of BSD
code under closed source licenses. In this paper we put forward an
argument to the effect that the terms of the BSD require BSD code and
modifications to BSD code to be licensed under the terms of the BSD
license. We look at some possible consequences and observe that this
licensing requirement could have serious impacts on the unwary.'"
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