> In other words, under the logic of the BSD advertising clause, the > Regents of University of California could also compel the inclusion > of certain language in advertising flyers distributed by bookstores, > the Book-of-the-Month Club, and so forth, since the University of > California also has a publishing imprint, through which various > academics publish books in which all exclusive rights are reserved.
Bookstores do not need a copyright license to sell legally acquired books. By the time they get the book, it has already been copied and distributed -- they are protected in this case by the first sale doctrine. This is exactly the same issue that comes up every time someone talks about GPL enforcement. By granting you a license to copy and distribute their code, Berkeley has granted a waiver of their exclusive rights under copyright law -- in particular, the right to reproduce, distribute, and prepare derivative works -- rights that a bookseller does not need. In exchange for granting that right, they are permitted to ask for something in return, and that will be enforceable (via a copyright infringement action) except perhaps in cases where such a restriction is contrary to public policy (as, for example, the censorship clauses covering McAfee anti-virus software have been held to be unenforceable in New York). Citing first amendment cases in this context is generally not going to be helpful. > One might be able to *contract* away one's right not to say "<Copyright > holder> is the coolest person I have ever met", but copyright law cannot > compel you to say it. No, but copyright law does say that you have no right to "copy and distribute" in the absence of a (potentially conditional) grant of permission. This issue is complicated by the fact that the so-called "BSD license" is just a copyright notice and was really never intended to be a license at all. Berkeley's Computer Science Research Group distributed the Berkeley Software Distributions only to persons who had returned to them (in duplicate) actual signed license agreements plus a distrtibution fee. The actual license agreement (as of 4.4BSD-Lite in 1994) was two dense pages of text and definately a contract. Take care, Greg Pomerantz (this is not legal advice)