Scope of copyright on derivative works

[Chris Travers]

On 9/28/07, Smith, McCoy <mccoy.smith at intel.com> wrote:
>
> "Preexisting elements of 'its expressive whole'
> remain under the BSD license."
>
> Perhaps it would help those you want to convince if you could point out
> where in the BSD license that is stated or implied.


I have argued this in the past.  Since you haven't responded to that post, I
will repeat here.  Basically:

1)  Most BSD-licenses I have seen actually used require the *permission
grant* be included and therefore directed at all downstream recipients.  See
below for an example from PostgreSQL.

2)  Non-exclusive licenses are indivisible and don't provide an implied
sublicensing grant.  Since the BSD license doesn't mention sublicensing, and
since sublicensing is not required to exercise any other rights granted in
the license, it is not allowed.  End of story.

The BSD license from PostgreSQL is as follows:

PostgreSQL Database Management System
(formerly known as Postgres, then as Postgres95)

Portions Copyright (c) 1996-2005, PostgreSQL Global Development Group

Portions Copyright (c) 1994, The Regents of the University of California

Permission to use, copy, modify, and distribute this software and its
documentation for any purpose, without fee, and without a written agreement
is hereby granted, provided that the above copyright notice and this
paragraph and the following two paragraphs appear in all copies.

IN NO EVENT SHALL THE UNIVERSITY OF CALIFORNIA BE LIABLE TO ANY PARTY FOR
DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING
LOST PROFITS, ARISING OUT OF THE USE OF THIS SOFTWARE AND ITS
DOCUMENTATION, EVEN IF THE UNIVERSITY OF CALIFORNIA HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE.

THE UNIVERSITY OF CALIFORNIA SPECIFICALLY DISCLAIMS ANY WARRANTIES,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.  THE SOFTWARE PROVIDED HEREUNDER IS
ON AN "AS IS" BASIS, AND THE UNIVERSITY OF CALIFORNIA HAS NO OBLIGATIONS TO
PROVIDE MAINTENANCE, SUPPORT, UPDATES, ENHANCEMENTS, OR MODIFICATIONS.
---

Thus we see that the BSD license grants any downstream recipient permission
to use any copyrighted element released under that license in any way which
does not violate that license.  Sublicensing is not explicitly mentioned,
nor is it an implied right because it is not required to exercise any other
rights granted by the license.  There is no other reasonable way to read
this license.

What the BSD license does not do is prevent you from enforcing your own
copyrights as you see fit.  Those could be released under the GPL v2 or a
proprietary license.  However, you cannot extend the GPL restrictions to
copyrighted elements you don't have a claim to.  This means that
BSD-licensed code is always under the BSD license *only* unless the
copyright author approves a license change, and thus seems to pose no
differences in GPL3 compatibility issues when compared to the MS-PL.

IANAL, and you have said you are one, Mr. McCoy.  Perhaps you would like to
respond to these specific points.

Best Wishes,
Chris Travers
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.opensource.org/pipermail/license-discuss_lists.opensource.org/attachments/20070928/ba8f0c47/attachment.html>