[License-discuss] proposal to revise and slightly reorganize the OSI licensing pages

Rick Moen rick at linuxmafia.com
Fri Jun 8 07:49:20 UTC 2012

Quoting Chris Travers (chris at metatrontech.com):

> Maybe I misunderstood what Larry Rosen was saying about the
> differences in the BSD and MIT licenses in his book then ;-).

Oh, there is.

The alleged '{relicensing|sublicensing} of BSD code', however,
inevitably turns out in the real world to be a somewhat melodramatic
mischaracterisation of a derivative work.  Thus my point.

> The Nusphere case is more interesting when we stop thinking about
> software and look at copyright as protecting what might be thought of
> as "software as literature" or "software as expression."  

I think you picked a extremely poor example.  NuSphere clearly created a
derivative work in violation of copyright, they ended that violation two
days before filing of litigation, the judge advised MySQL AB that he or
she doubted actual damages could be proved, and everything collapsed in
a flurry of press releases and then a quiet settlement.  Not a lot to
learn, there.

> The GPL allows mere aggregation without license contagion but requires
> that works "based on" the original work carry the same license.  If we
> assume that these tie directly to categories of US copyright works,
> then "based on" means derivative work (in the sense that a movie might
> be "based on" a book), while aggregation would appear to mean compiled
> or collected works (anthologies).  

Who cares what GPL (either v2 or v3) 'means'?  The boundaries of
the legal concepts of 'aggregated work' and 'derivative works' are
determined by judges based on guidelines from caselaw, not by anything
written by Prof. Moglen.

If you're trying to learn copyright law by reading copyleft licences,
you're wasting your time, in my experience.  Try relevant caselaw.

> Whether the Geminii table engine would be a derivative work of MySQL
> is a question that I don't think the jurisprudence is clear on (IANAL
> again). 

You _seriously_ think compiling a work directly into a second one in a
functionally integral manner doesn't create a derivative work?  Well,
I'll just quote Damon Runyon (riffing off Ecclesiastes 9:11):  'The race
is not to the swift, nor the battle to the strong..., but that's the way
to bet.'  ;->

> But the point here is that both of these are cases where reasonable
> minds can disagree.  Rick looks at the BSD license and says "well, it
> seems to allow me to license this to others under more restrictive
> terms if I keep the old copyright notices and license text in tact."

No, not 'licence this'.  Create a derivative work whose licence
satisifies the requirements of the BSD licences as to the borrowed
copyrighted elements.

Any derivative of a BSD-licensed work that fails to satisfy the
BSD-licensed elements' 2, 3, or 4 licence requirements (depending on
which BSD licence was specified) violates the stakeholder's copyright
and creates a cause of tort action.

More information about the License-discuss mailing list