Implications for switching licenses mid-stream

[Chris Zumbrunn]

> On Apr 22, 2008, at 1:35 PM, Ben Tilly wrote:
>> Arnoud Engelfriet wrote:
>>> This is probably legal nitpicking, but I don't see sublicensing or
>>> relicensing rights in the BSD license, so I'm not sure that I can
>>> simply apply a new license to a BSD codebase as such. For derivative
>>> works, sure. But for the unmodified codebase?
>>
>> If I reissue the work with nothing changed by the copyright  
>> statement,
>> the work has been modified so isn't it now a derivative work?
>>

"The copyright in a compilation or derivative work extends
only to the material contributed by the author of such work,
as distinguished from the preexisting material employed in
the work, and does not imply any exclusive right in the pre-
existing material. The copyright in such work is independent
of, and does not affect or enlarge the scope, duration, owner-
ship, or subsistence of, any copyright protection in the exist-
ing material. (17 U.S.C. § 103[b].)"

Plus, one could argue that relicense != sublicense. So, even if a  
license grants the right to sublicense, it doesn't mean that you can  
relicense the work under another license. Sublicensing merely  
explicitly allows the licensee to license the work to others under the  
existing license. Only the derivative work or collective work created  
by the licensee can be under another license and the parts from the  
original work are only sublicensed under the existing license.

Write the sentence "Only the copyright holder can relicense." 50 times  
on the blackboard.


On Apr 23, 2008, at 10:01 , Rick Moen wrote:

> Quoting Chuck Swiger (chuck at codefab.com):
>
>> We've had this discussion several times before.  :-)
>
> Fruitlessly, it appears.
>
>> More importantly, altering a copyright without explicit permission
>> would likely be considered a violation of USC 17 section 506c - e, or
>> equivalent.
>
> To quote Niven and Pournelle's Rod Blaine, "That turns out not to be
> the case."  You are assuming that the project leader changing the
> licence terms on a collective work constitutes willful copyright
> infringement -- and, in your hypothetical, it seems doubtful to assert
> that it's necessarily copyright infringement of _any_ sort, for  
> reasons
> cited by Catherine and Eric Raymond in the cited HOWTO.  As those
> authors point out, the project leader needs only to prevent causing
> actual (monetary) damages to collective-work contributors.
>
> (Said project leader _would_ be guilty of being a fool and a jerk if
> he/she didn't secure consensus, and would likely cause an immediate
> fork, but I cannot see a tort in the picture.  IANAL.  TINLA.  YADA.)

Certainly, I would say a project leader wouldn't be able to get away  
with changing a project's license from BSD to GPL without potentially  
causing injury to contributors.

In the case of switching between permissive licenses, what you said  
may be true from a pragmatic perspective, but it only means that as  
long as the project leader doesn't cause injury to contributors, he  
can get away with it, because the contributors don't have grounds to  
sue. It doesn't mean he actually has the legal right to relicense.

If the project leader has a copyright on the collective work as a  
whole, he can change the license for the distribution of the package  
as a whole. However, that does not affect the parts of which other  
contributors hold the copyright, so they remain under the license  
granted by that contributor, unless that contributor also agrees to  
relicense.

Chris