David Kastrup wrote: > > Rjack <[email protected]> writes: > > > "As we were going over the scan results I noticed a very interesting > > trend. The GPL licensed software tends to assimilate quite a bit of > > BSD-style and public domain source code. By including that other > > source code it ends up spreading like a cancer." > > http://questonsecurity.blogspot.com/2009/04/gpl-license-is-like-cancer.html > > Hm? The whole point of BSD-style and public domain source code (and > what the proponents are proud about) is that it is _intended_ for > assimilation into differently licensed software.
Hm? The whole point of the BSDL'd and the public domain source code is that it (original source code released under the BSDL or entered/dedicated/ in/to the public domain) is "_intended_" to remain under the BSDL and (respectively) the public domain. The public domain code just can NOT be *copyright* licensed at all and the BSDL'd original expression must remain under the BSDL and only the BSDL, regarding the the copyright law. Some have argued that even modifications to the BSDL'd code must remain under the BSD as well: http://opensourcelaw.biz/publications/papers/BScott_BSD_The_Dark_Horse_of_Open_Source_070112lowres.pdf "What is the legal effect of being required to retain "this list of conditions". Are they just there for show? Do they have some other effect? In determining this, a court will look to the objective meaning of the clause and, potentially, the objective intention of the original licensor. In this case, the actual subjective intention of the party granting the license (and what they thought the words meant) is irrelevant.8 What the court is looking to determine is what the reasonable person (ie an idealized and dispassionate citizen who is called on to assess the scope of the license) would make of the words.9 Consider first the warranty disclaimer. If there is a requirement to "retain" a copy of the warranty disclaimer in a redistribution, is a court likely to say the warranty disclaimer is intended to be effective or not? For example, could the disclaimer be retained but framed by a redistributor in such a way that the disclaimer had no legal force?10 It is likely that the reasonable person would read the license and think that the licensor intended that the warranty disclaimer was to be retained without qualification. A similar argument could be made about clause 5 (which prohibits endorsements). On this analysis, the warranty disclaimer travels with the distribution and the redistributor has no ability to qualify it. The question then becomes what about the other clauses? What about clause 2 which permits "redistribution and use" of the source form? If, in the case of the warranty disclaimer, the objective intention of the requirement to "retain" or "reproduce" the warranty disclaimer is that the warranty disclaimer cannot, by the manner of its retention, be limited in its application or scope. Why should the same reasoning not apply to the terms in the "list of conditions"? Moreover, if the disclaimer and endorsement prohibition are operative as conditions, what basis can there be for arguing that the other clauses are not? If the other license terms are operative, then the combined effect of clauses 2 and 3 is that redistribution of the source form must occur on the terms of the NBSDL. [...] We now turn our attention to the case where modifications are made to the source form, and redistribution of the source form with those modifications occurs. Above, we concluded that the NBSDL applies to the unmodified source form. Does it also apply to the source form with modifications? The situation in this case can be argued in a similar manner to the argument above about framing the warranty disclaimer. By assumption, no license is granted by the redistributor over the original code. This raises a question about the difference between the original work and the work as modified. This difference may not be able to be licensed by the original licensor as it may not be theirs to license. However, the original licensor has mandated specific wording to be included which, on its face, applies to the source form with modifications. The question would become is it reasonable to read these words as permitting a similar form of framing by the distributor to that discussed above (in paragraph 4.5/note 10)? For the same reasons as those above, it seems unlikely that the wording would be permitted to be framed so as to be ineffective. Could it be framed to be limited in application? We would argue that the original licensor has an interest in disclaiming the whole of the source form with modifications, especially as modifications may cause the code to operate incorrectly. If so, that would support a reading of the license as not permitting the restriction of the disclaimer to a subset of the source. A similar argument might be made in respect of the no endorsement requirement in clause 5 (which refers to this software), although this is not so clear. Two clauses (the warranty disclaimer and the clause 5) imply that the terms of the license are intended to address some of the interests of contributors to the software.12 The references to contributors in clauses 5 and 6 would have no meaning if the license terms only ever applied to the original form as licensed. As these references to contributors appear to be very deliberate, it would be inappropriate to prefer an interpretation in which they have no meaning. As such, we argue that the license does not permit its own framing in the course of distribution and the wording would be read as a license over the work with modifications. There may now be two licenses, one from the original licensor relating to the unmodified work, and one from the contributor relating to the work with modifications. A counter argument may be that, depending on how the template's details are populated, the copyright statement (clause 1) will be wrong in the case of modifications and the NBSDL does not provide an option for the addition of other copyright notices. This is difficult to reconcile with the interpretation above.13 However, if not reconciled (perhaps as a drafting error),14 it is difficult to see how the NBSDL can be interpreted except by reading down the references to contributors in clauses 5 and 6.15 [...] CONCLUSION If the arguments in this paper are correct then we can draw a number of conclusions: (a) arguably, the words of the NBSDL considered in isolation require that modifications be distributed under the terms of the NBSDL, and that this requirement therefore cascades down to subsequent generations of code; (b) the license does not appear to leave room for the relicensing of a NBSDL Work under the terms of any other license, at least in so far as any restrictions in other licenses would seem to be able to be avoided; (c) the NBSDL does not have a requirement for the distribution of source code." regards, alexander. -- http://gng.z505.com/index.htm (GNG is a derecursive recursive derecursion which pwns GNU since it can be infinitely looped as GNGNGNGNG...NGNGNG... and can be said backwards too, whereas GNU cannot.) _______________________________________________ gnu-misc-discuss mailing list [email protected] http://lists.gnu.org/mailman/listinfo/gnu-misc-discuss
