[License-discuss] Does the LinShare "attribution" notice violate OSD?

[Pamela Chestek]

On 9/19/2022 5:18 PM, Thorsten Glaser wrote:
> Pamela Chestek dixit:
>
>> (and something I think about occasionally). OSD says "The license must allow
>> modifications and derived works ..." But it doesn't say ALL modifications. If
>> it is construed as meaning ALL modifications, that interpretation gets hard to
>> reconcile with elements typically accepted as protected from modification, such
>> as the copyright notice and a disclaimer of warranty by the original authors.
> Does it? The licence allows all modifications, those are merely
> required to be retained by law (not the licence).
The duty to keep the notice is a contractual duty. If there is a legal 
requirement to retain a copyright notice (there is not in the US - it 
can sometimes be unlawful to remove it, but only if done knowing that 
the removal will induce, enable, facilitate, or conceal an infringement) 
in the US the law postdates the same language in the Debian Free 
Software Guidelines. The legal provision is from a section of the 
Digital Millennium Copyright Act (Pub. L. 105–304, title I, § 103(a), 
codified at 17 U.S. Code § 1202), which became effective on October 28, 
1998. The DSFG was ratified on July 5, 1997.  And this law just applies 
to copyright, not patent, trademark or attribution notices, which the 
Apache license says must be retained.
> It’s even common
> for people to merge identical licences by listing all authors and
> their years together, and I consider this to be equivalent to the
> initial separate notices from the individual files.
>
> So, yes, the licence must allow ALL modifications.
What about "this permission notice shall be included in all copies or 
substantial portions of the Software"? What about "If the Work includes 
a 'NOTICE' text file as part of its distribution, then any Derivative 
Works that You distribute must include a readable copy of the 
attribution notices contained within such NOTICE file ..." Don't those 
prohibit removal of the license text and any NOTICE file? The first is 
MIT and the second is Apache, both unequivocally open source licenses.

Pam

Pamela S. Chestek
Chestek Legal
PO Box 2492
Raleigh, NC 27602
pamela at chesteklegal.com
+1 919-800-8033