Wondering if my license already exists

Sat Aug 6 21:40:43 UTC 2005

on Wed, Aug 03, 2005 at 03:11:40PM -0400, Steve D. Perkins (steve at steveperkins.net) wrote:
> Hello all -
> 
> I am wanting to apply what I believe to be a "BSD" or "BSD-style"
> license to a project I am developing.  I have been asking around on
> several newsgroups and forums in an attempt to clarify some confusion
> I have regarding the BSD license, and to ensure that by using it my
> wishes would be properly expressed.  The responses I've been getting
> are so mind-bending, I am at a point now where you could tell me the
> BSD and GPL were the exact same thing and I would believe you!  I
> should have just come to this mailing list first.
> 
> Here is the hypothetical license I would like to apply to my project:
> 
> /**************************************************
> <SOFTWARE>
> Copyright <YEAR>, <OWNER>
> 
> Permission is hereby granted to use this software in any manner, in 
> whole or in part, in original or modified form, subject to the following 
> conditions:.
> 
>    - Users of this software must not misrepresent themselves as being
>      the original author of this software.  Any modification to this
>      software will result in a new and separate work that must not be
>      misrepresented as equivalent to this software.
> 
>    - The name of <SOFTWARE> or <OWNER> must not be used to imply
>      endorsement of any usage or modification of this software.
> 
>    - This software is provided by the copyright holders and
>      contributors "as is" and any express or implied warranties,
>      including, but not limited to, the implied warranties of
>      merchantability and fitness for a particular purpose are
>      disclaimed.  In no event shall the copyright owner or contributors
>      be liable for any direct, indirect, incidental, special,
>      exemplary, or consequential damages (including, but not limited
>      to, procurement of substitute goods or services; loss of use,
>      data, or profits; or business interruption) however caused and on
>      any theory of liability, whether in contract, strict liability, or
>      tort (including negligence or otherwise) arising in any way out of
>      the use of this software, even if advised of the possibility of
>      such damage.
> 
> **************************************************/
> 
> Can anyone tell me with reasonable assurance whether or not this
> license is functionally equivalent to any existing OSI-approved
> licenses?  

Not off the top of my head, though it shares elements of the BSD and
Artistic licenses.  It actually _is_ sufficiently novel and fills a
space that doesn't presently seem to be well defined that I'll break my
usual strong aversion to license proliferation and suggest that this
idea _should_ be further fleshed out.

The basic terms you're looking at do seem to fall under the scope of
copyright law (you're not in left field looking to assert some arbitrary
or imagined right), or are substantively similar to those of other
licenses (e.g.:  disclaimer of warranty).

I'm _not_ certain that this need fall under copyright license, or if a
mix of attribution (your own identification or lack with the work in
question) and/or trademark (name of the project) in addition to a
standard (BSD/GPL) license might suffice.

There is one precedent I'm familiar with, which is my friend Rick Moen's
somewhat "reverse attribution" license.  He uses this for certain
documentation, and effectively his goals are:

  - If the work is quoted verbatim, he wants full attribution.

  - If the work is adapted in any way, he wants _no_ attribution.

The objective is that he not be pestered with support issues for
variants of the works which differ from those he's actually produced
himself.  This is an arrangement others would likely express some
interest in.

There's nothing in what you're describing which would seem to contradict
the requirements of the OSD.

> It seems to be extremely close to the current BSD license
> (the "disclaimer" in the third clause is directly cut-n-pasted from
> that license).  However, I have some concerns about the BSD's
> requirements regarding copyright notice.  

You can (almost) always _waive_ a right.  The GPL, for example, is
adapted by several projects (most notably thet GNU/Linux kernel) with
specific waivers of limitations and/or nonstandard restrictions.  In the
case of the kernel, it's the requirement that future versions be
licensed *only* under version 2 of the GPL (ordinarially GPL terms allow
"any later version"), and waives the strict requirement for GPL-only
linking, in the case of kernel modules.

> As I have heard it interpreted, the BSD license requires the authors
> of derived works to include the original author's copyright notice and
> terms in the source and docs.  Under this interpretation, the spirit
> of the old "advertising clause" essentially persists, just in a less
> prominent way.

My understanding is that the BSD license can make this claim because
authors have the right to claim attribution.  Rights can be enforced or
expressely waived (with very few exceptions), so a rider stating the
conditions under which you _don't_ want attribution should be OK.  In
this case, the standard BSD license would seem to be appropriate.

Similarly, the name of a project is really a matter of trademark, not
copyright law, and can be managed independently.

Templating the application of these two conditions for other authors and
projects to adopt could be useful.

> Under the terms I wish to apply, including my copyright notice and
> licensing terms in derived works is not necessary.  As I view it, ANY
> modification to my software (including the simple act of stripping out
> my copyright notice) results in the creation of a new and separate
> work.  

I'd suggest that simply stripping the notice *doesn't* change the work,
but as you say, you're OK with that.  And if you're the author, this is
your prerogative.

> This is completely fine with me, so long as that new work is not
> misrepresented as equivalent to my original work.  I have no interest
> in "protecting my credit" in derived works... quite the contrary, I
> wish to distance myself from derived works while protecting my credit
> for my original work.
> 
> Is this in fact a new license, or is it equivalent to the BSD and my
> interpretation is simply flawed?  Thanks in advance!

BSD++ IMO, where ++ indicates additional, non-conflicting clauses.

Should also, FWIW, be GPL compliant, as I see no contradiction with GPL
terms either.

Peace.

-- 
Karsten M. Self <kmself at ix.netcom.com>        http://kmself.home.netcom.com/
 What Part of "Gestalt" don't you understand?
    The Earth *is* flat.  But Mars is sharp and Venus is in tune, which
    makes up for it.
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