[License-discuss] BSD 3-clause and copyright notices

[Henrik Ingo]

On Tue, Sep 29, 2015 at 5:13 PM, Zluty Sysel <zluty.sysel at gmail.com> wrote:
> Hi all,
>
> After conquering many hurdles along the way, it looks like the company
> I am a part of is willing to release a good part of the source code we
> own as open source software. Before we do that though there are a
> couple of outstanding issues that I was hoping someone on this mailing
> list could clarify. We want to use a BSD 3-clause and immediately
> publish the source code on a public code repository allowing
> contributions from users. The questions that have arisen are the
> following:
>
> 1) Clause 2 requires users that distribute the software in binary form
> to reproduce the copyright notice. Since the holder of the copyright
> notice is the very same company that makes the source code available
> to them, would it be possible to selectively waiver this obligation to
> a particular set of users without infringing on the Open Source
> definition or the BSD license itself?

Yes and no.

Since your employer owns the copyright to this software, they of
course have the right to issue any licenses to it that they want. One
such license could bd BSD+waiver, to a specific list of recipients. If
these recipients are your customers, you would probably send them a
letter with such text. Alternatively you could publish the waiver on
your website, etc. Doing this would not be unheard of.

However, since you intend to receive outside contributions, this
becomes trickier. You cannot issue a waiver on behalf of the other
developers who will own copyrights to the code they have contributed.

> If the answer was negative, would including the existence of such a
> waiver in the license itself preclude it from being considered an open
> source software license?

Well, it would no longer be the BSD license and hence it would not be
an OSI approved open source license.

A license with such a waiver may still be open source in the sence
that it would conform to the Open Source Definition. However, if you
wanted general approval for it, you would have to submit it to OSI
review as a new license. I think it's a fair estimate that you might
not succeed in having such a modified license approved though.


> 2) When accepting contributions to the source code repository from
> external sources, I have seen that is sometimes customary to include
> an additional copyright line to the license text included at the top
> of the source file, crediting the person or company that contributed
> the new code or file.
> Would then the waiver mentioned in question 1) be in violation of the
> additional copyright holder(s)' rights?

Yes, as I explained above.

There are some practices in the open source community that could still
help you get around this. For example sometimes a central copyright
holder may require other contributors to assign their rights to the
central entity. (This can be either a for-profit or non-profit
corporation.) In this case the problem goes away, since your employer
would continue to own rights to 100% of the code. Note however that
such contributor agreements / IPR assignments are somewhat unpopular
in the community. The main reasons behind that are that a) they add
bureacratic overhead to the act of contributing, and b) they add
inequality to the contributor community, for example the central
entity may use its right to include the contributed code in closed
source products. In your case, since the code is BSD licensed anyway,
the b) concern may not be so important.

You could also simply say that contributors must accept the waiver,
otherwise you won't receive their contribution. For added legal
safety, you should probably require some kind of signed acceptance of
this. Thus the bureucratic overhead is equivalent to a contributor
agreement anyway.

> 3) When reproducing the copyright notice in binary distributions, must
> one parse all source code files to find out all of the contributors'
> names and include them in full? Or is it enough to simply provide a
> LICENSE file that only credits the original author (the company that
> made the source code available originally) so that users of the source
> code can simply reproduce that particular file in their binary
> distributions?

Yes, I suppose. I don't think this is commonly done though. I've seen
Oracle do it for a short while when they acquired MySQL, but I don't
think they do it anymore.

The BSD requires one to reproduce "The above copyright notice". One
way to avoid this problem would be to enforce a style where the
copyright notice is always the same, such as "The Foo project" or
"MyCompany and contributors". This way it doesn't matter which
individual contributed to each source file. You should of course in
that case maintain some other file, perhaps CONTRIBUTORS.TXT, to
credit the contributors to the project.

Note that losing track of who contributed what code might again be
considered bad practice for other reasons.

henrik



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