BSDL/GPL v3 compatibility

[Alexander Terekhov]

On 8/25/07, Dag-Erling Smørgrav <des at linpro.no> wrote:
> "Chris Travers" <chris.travers at gmail.com> writes:
> > Hi all;
>
> That's a real stumper.  I'll have to think about it and get back to
> you.

http://opensourcelaw.biz/publications/papers/BScott_BSD_The_Dark_Horse_of_Open_Source_070112lowres.pdf

"What is the legal effect of being required to retain "this list of
conditions". Are they just there for show? Do they have some other
effect? In determining this, a court will look to the objective
meaning of the clause and, potentially, the objective intention of the
original licensor. In this case, the actual subjective intention of
the party granting the license (and what they thought the words meant)
is irrelevant.8 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.9

Consider first the warranty disclaimer. If there is a requirement to
"retain" a copy of the warranty disclaimer in a redistribution, is a
court likely to say the warranty disclaimer is intended to be
effective or not? For example, could the disclaimer be retained but
framed by a redistributor in such a way that the disclaimer had no
legal force?10 It is likely that the reasonable person would read the
license and think that the licensor intended that the warranty
disclaimer was to be retained without qualification. A similar
argument could be made about clause 5 (which prohibits endorsements).

On this analysis, the warranty disclaimer travels with the
distribution and the redistributor has no ability to qualify it. The
question then becomes what about the other clauses? What about clause
2 which permits "redistribution and use" of the source form? If, in
the case of the warranty disclaimer, the objective intention of the
requirement to "retain" or "reproduce" the warranty disclaimer is that
the warranty disclaimer cannot, by the manner of its retention, be
limited in its application or scope. Why should the same reasoning not
apply to the terms in the "list of conditions"? Moreover, if the
disclaimer and endorsement prohibition are operative as conditions,
what basis can there be for arguing that the other clauses are not?

If the other license terms are operative, then the combined effect of
clauses 2 and 3 is that redistribution of the source form must occur
on the terms of the NBSDL.

[...]

REPRODUCTION IN SOURCE FORM WITH MODIFICATION..."

regards,
alexander.