For Approval: BSD License, PostgreSQL Variant

[Alexander Terekhov]

On 10/11/07, Lawrence Rosen <lrosen at rosenlaw.com> wrote:
[...]
> BSD-licensed software can, however, be combined into new works and those new
> works distributed under either proprietary or FOSS licenses.

If you mean typical EULAs, those are not really copyright "licences"
in the sense of granting rights reserved to copyright owners. You
cannot compare apples with oranges.

http://www.cacd.uscourts.gov/cacd/RecentPubOp.nsf/0/1c0109b1a49387b288256b48007a04cd/$FILE/CV00-04161DDP.pdf

------
Adobe characterizes each transaction throughout the entire stream of
commerce as a license.8 Adobe asserts that its license defines the
relationship between Adobe and any third-party such that a breach
of the license constitutes copyright infringement. This assertion
is not accurate because copyright law in fact provides certain
rights to owners of a particular copy. This grant of rights is
independent from any purported grant of rights from Adobe. The
Adobe license compels third-parties to relinquish rights that the
third-parties enjoy under copyright law.

[...]

(2) Sale v. License

(a) Historical Background

Historically, the purpose of "licensing" computer program copy use
was to employ contract terms to augment trade secret protection in
order to protect against unauthorized copying at a time when, first,
the existence of a copyright in computer programs was doubtful, and,
later, when the extent to which copyright provided protection was
uncertain. (See Rice Decl. ¶ 6.) Computer program copy use
"licensing" continued after federal courts interpreted the
Copyright Act to provide substantial protection for computer
programs as literary works. (Id. at ¶ 7.) In Step-Saver Data
Systems, Inc. v. Wise Technology, the Third Circuit examined the
historical development of the use of licensing in the software
industry and concluded that subsequent changes to the Copyright Act
had rendered the need to characterize the transaction as a license
"largely anachronistic." 939 F.2d 91, 96 n.7 (3d Cir. 1991).10

(b) Adobe Sells its Software

A number of courts have held that the sale of software is the sale
of a good within the meaning of Uniform Commercial Code. Advent
Sys. Ltd. v. Unisys Corp., 925 F.2d 670, 676 (3d Cir. 1991); Step-
Saver, 929 F.2d at 99-100; Downriver Internists v. Harris Corp.,
929 F.2d 1147, 1150 (6th Cir. 1991).

[...]

Other courts have reached the same conclusion: software is sold
and not licensed.
------

Gack!

regards,
alexander.

--
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