BSD legal question

Ted Mittelstaedt tedm at toybox.placo.com
Thu May 19 01:57:33 PDT 2005



> -----Original Message-----
> From: owner-freebsd-questions at freebsd.org
> [mailto:owner-freebsd-questions at freebsd.org]On Behalf Of Danny Pansters
> Sent: Wednesday, May 18, 2005 7:47 PM
> To: freebsd-questions at freebsd.org
> Subject: Re: BSD legal question
>
>
> On Thursday 19 May 2005 03:06, Daniel S. Wilkerson wrote:
> > I have a rather strange legal question that I'm not sure who
> to ask of; it
> > is about GPL vs. BSD but not about the FreeBSD project
> directly.  Asking
> > someone at the university is the last thing I want to do.
> Do you have
> > someone who answers legal questions?  It is rather pro-BSD
> so I didn't
> > want to write the FSF.  I'll spare you the question itself
> if you are not
> > interested.
> >
> > Daniel Wilkerson
>
> Joel is right, if you don't ask the real question we can't
> comment anyway. And
> for all the lawyer talk, I say read the texts and apply logic.
> That gets you
> insight also and it doesn't cost and the knowledge lasts forever.
>
> But if we're going into this anyway, here's an interesting
> point that people
> tend to dabble about: One common misperception even in the
> *BSD world IMHO is
> that if you use and alter GPL code you have to release your
> work under GPL
> also. I don't think that's true.

Wrong, that IS true, here's the section of the GPL that dictates
this:

"...But when you distribute the same sections as part of a whole
which is a work based on the Program, the distribution of the whole
must be on the terms of this License..."

http://www.fsf.org/licensing/licenses/gpl.txt

 All that's required is that
> you provide the
> sourcecode to your changes (pedantically: only if asked for).
> If you do that
> under whichever license that pleases you, you're OK.

Not true.  The ONLY thing you could do is, for example,
distribute a set of patches to a GPL program under the BSD
copyright - but as such patches would be useless without the
GPLed program, as soon as the person that wants to use those
patches applied them to the GPL program, the result would
immediately become GPL.  And of course, you could only
distribute just those patches alone - not also distribute
the GPL program.


>
> By extension I consider the LGPL for things like libraries and
> toolkits
> effectively as BSD or MIT. Otherwise you might as well GPL all
> content you
> see with mplayer (which is legally impossible to begin with
> because the
> content was never theirs, same with original source code that
> merely uses a
> library or a toolkit or some other API that may be GPL'ed).
>

That is a different deal - and one that hasn't yet been tested in
the courts.  And the FSF has worked vigorously to keep such
court cases as have arisen, OUT of the courts, and settled out
of court.  The problem is such:

Suppose I distribute a library that is under my own copyright,
yet carries a BSD-like license.

Suppose you then come along and take my library, and a GPLed
library, link both of them together into a new program of yours.

The FSF says that the entire code now becomes GPL.

The problem here is that since you never owned copyright on
my library, you do not have legal rights to modify the copyright
and license on it.  Thus, you cannot legally apply GPL to it.
Nor can the FSF or anyone else apply GPL to it.

Naturally, the parts of the program you are distributing that
YOU wrote are under GPL.  But, suppose another guy comes along,
takes your program, and pulls my library out of it and uses it
for his program.  According to the GPL, if he does this that
library is GPLed now, and his program must be GPL. According
to the law, though, it's not GPL, it's mine.

And even more fuzzy is what happens if you put a dual-license
on your resultant program which reads something like:

"This software is GPL if you use it as a whole, according to
the terms of the GPL, but the parts of it that are under my
copyright may also be used separately from the other parts that
are owned by someone else, under a non-GPL.

According to the FSF's various FAQ's and such, you aren't supposed
to be able to dual-license stuff like this - in short, once you
distribute your program as a whole, it's all GPL.  But once
again this runs afoul of copyright law - because the "whole"
distribution they are talking about in the GPL can be considered
to be 2 distributions actually - one is the "whole" and the
other distribution is a distribution of two separate parts - your
part and the GPL part.  That is, as long as you have coded things
in separate modules, and licensed it properly, someone can come
along and take just your modules out of the "whole" and use them.

Now you see one of the legal achillies heel's to the GPL.  That
is why they wrote the LGPL frankly, not because of the public
bullshit reason they state.  It is because code that is only
libraries, not a separate program, invariably gets linked with
other people's stuff, and your just asking for trouble if you
try to viralize someone else's stuff.

This problem arises because the GPL is a LICENSE, whereas the
BSD is a COPYRIGHT that has come to be a generic term applied to
any kind of software copyright license that reads like the BSD.  Strictly
speaking, if I put:

"This software copyright Ted Mittelstaedt, Redistribution and use
in source and binary forms, with or without modification, are permitted
provided that the following conditions are met, blah blah blah..."

it is NOT a BSD license, it is a Ted Mittelstaedt license that
reads like a BSD license, and so people refer to it as a BSD
license.

People think that the BSD license works the same as the GPL license
but they are two different animals.

In short, if I write code and retain copyright, even if I apply
a license to it that is verbatim what BSD says, it's not a true
BSD license.  It's a BSD-like license.  To get a true BSD license
you have to assign copyright to the University of California,
Berkeley.

> In any event, except when you use public domain, any copyright
> declarations
> and terms of acknowledgement stay valid by automagic copyright
> law being
> applied. IIUC the problem with public domain is that although
> you discard
> copyrights then you can still be held liable, but I'm not sure
> about that.

The problem with public domain isn't that.  For starters you cannot
discard copyright, there is always copyright.  What true public
domain is, is copyrighted stuff where the copyrights have expired,
or stuff that isn't legally able to be copyrighted,  or stuff
that you have applied your copyright, then written in a license
clause which states in effect that anyone has permission to
re-copyright your stuff with their copyright.

That is the problem with it - because true public domain doesen't
really exist in nature unless the stuff is uncopyrightable.
(ie: news articles, jokes, etc.)

For example, consider The Holy Bible.  Copyrights on that have,
of course, long since expired.  But, all a publisher has to do
is rewrite it and bang - copyright instantly applies.

Of course, nothing stops another publisher from simply going back
to the original Hebrew texts and translating them, or going back
to the KJV (which the copyrights have expired on) and publishing
that.  There is a rather amusing and interesting article on this
here:

http://www.chick.com/information/bibleversions/articles/copyright.asp

Ted



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