new project, old license

Gary W. Swearingen garys at opusnet.com
Tue Sep 6 12:07:24 PDT 2005


"Jeremy C. Reed" <reed at reedmedia.net> writes:

> The situation: a project is reusing a BSD style licensed code and is relicensing their changes with the same license.
>
> The original license had the "AS IS" disclaimer that specifically mentioned the project's name.
>
> Is it acceptable to rewrite to say ... IS PROVIDED BY THE foo AND bar PROJECTs "AS IS" AND ANY EXPRESS ...
>
> Or should it just include two copies of the copyright and license which are identical other than the project names?
>
> Or should it just keep the old project name in the "AS IS" disclaimer?

Of course we can't give legal advice and must send people to qualified
lawyers for that.  But we may discuss our understanding of law.

Keep in mind that if derivative B includes IP which is owned and
licensed by A, then two parties share ownership of derivative B.
17-USC-103 says:

    The copyright in a compilation or derivative work extends only to
    the material contributed by the author of such work, as
    distinguished from the preexisting material employed in the work,
    ...

But since a BSD-style license says nothing about sub-licensing
(allowing the derivative licensor to act as original licensor's agent,
I suppose) and asks for retention of license text, I conclude that
third parties can only use the derivative with the license
(figuratively and literally) of both owners.

(So, for example, when GPL users derive from BSD-licensed works and
then say the work is GPL'd, they are wrong, to put it politely.)

The requirements of the orginal BSD-style license are simple and don't
include anything about including the licensor's name in derivative
licenses or modifying the original's license.

I'll not comment on the merits and risks of prospective violations of
a BSD-style license.  And, unfortunately, it can be impractical to get
a custom license from some "projects".

It would normally be "nice" to include some verbage somewhere (like in
the derivative license) that goes beyond the original copyright notice
in explaining who owns what, the more detailed the better.  Another
thing to keep in mind is that the ownership might still be shared even
in derivative code written only by the second party, if it would be
considered derivative.  That's a murky subject, but sequels to
blockbuster novels or movies provide a clear example of the principle.

(One might ask if another license is needed from the first party to
cover his ownership in new derivative code.  I think that logic
requires it, but courts probably wouldn't, saying its covered by the
clear intent of the original badly-written license.  Speaking of
badly-written, note that the license doesn't even require its first
paragraph to be retained in redistributions, though, of course, such
omission wouldn't change the terms of the license, just the
redistribution of it. :-)


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