GPL vs BSD Licence

[Danny MacMillan]

I will preface my reply with the following disclaimer:  I am no
lawyer.  However as it's clear that you're not either, it makes
little practical difference.

On Tue, Oct 26, 2004 at 01:51:02AM -0600, Ted Mittelstaedt wrote:
> 
> ...
> 
> What is ignored is that the GPL contains a loophole - it DOES allow
> itself to be violated by a very specific person - the code copyright
> holder.

There is no violation.  The copyright holder is the licensor, not the
licensee.  No one needs a license to use the materials to which she
holds the copyright.  A license is used to grant (usually limited)
rights to people who do not hold the copyright.  The copyright holder,
by definition, has those rights and does not need them to be assigned.

> The reason is that the GPL is a license that DOES NOT CHANGE the
> copyright.

No license changes the copyright; see below.

> In short, if you apply the real live BSD license to your code, you
> are explicitly transferring your copyright to the Regents of the
> University of California.

This is nonsense.  Copyright assignment and licensing are separate and
discrete.  You certainly can assign your copyright to the Regents if you
wish.  This has no doubt been done.  However, you can assign your
copyright to anyone you wish, regardless of the license that is used.
In fact, the instant you assign your copyright you no longer have the
right to decide under what license the copyrighted material will be
provided (if at all), although when assigning to the Regents "BSD" is
a pretty safe bet.  Furthermore, licensing material under the BSD
license does not imply that the copyright will be transferred to
the Regents.  The copyright holder is identified at the top of the
BSD license; this information is important as it identifies the
licensor, one party to the agreement represented by the license.
For material you wrote, you are the copyright holder unless and until
you explicitly assign the copyright to another entity, or you're under
some agreement with someone (with your employer, for example) that
causes the copyright for the product of your work to belong to them.
Identifying the Regents as the copyright holder at the top of a BSD
license pertaining to material you wrote probably is legally
sufficient to transfer the copyright to them, but you are not
obligated to identify them as the copyright holder or relinquish
your copyright just to use the BSD license.

I refer you to the license itself:

http://www.opensource.org/licenses/bsd-license.php

Note the placeholder for <owner>.

I fully expect you to argue that a BSD license that does not identify
the Regents of the University of California is not "the real live
BSD license".  I would disagree.  By what criteria can an authentic
BSD license be distinguished from lesser imitations?  I doubt that
whether the Regents are the licensor are not is a criteria in common
use -- see above web site, which is about as authoritative a
reference as exists for free and open source licenses.  It's also
instructive to peruse the source code for the ostensibly BSD-licensed
FreeBSD operating system and see who holds the copyright.

Most of the rest of your arguments, being based on this fallacy, is
invalid.  To the extent that your arguments against the GPL are
valid, they are equally valid arguments against the BSD license.

> 
> ...
> 
> In short, Linus Torvalds owns copyright on the Linux kernel used in
> Linux.  He is legally free to license a copy of the Linux kernel
> to any commercial entity.  Granted, he cannot license out any files
> of the Linux kernel that he himself didn't write.  And of course,
> an OS is so complex and has so many files, that it would be likely
> that a purely Linus Torvalds kernel would be unrunnable. (at lest
> the kernel of today)
> 
> But in theory he could take his code and license it to some UNIX
> vendor separately, he is not obligated to license new versions of
> it under the GPL.
> 
> Now, you might think "So what, Linus will never do this"
> 
> But, what if he dies of a heart attack tomorrow?  Well, his copyright
> of Linux is property that will exist for another 70 years.  What happens
> if some company like SCO Group comes along and offers Linus's heirs
> a million dollars to purchase the Linux kernel copyright?  Do you
> think they wouldn't sell?
> 
> Sure, the GPL'd version of the kernel is still out there.  But, the
> copyright owner could make hay with the subsequent confusion.
> 
> These issues are NOT speculative and are NOT unknown by the Free Software
> Foundation, who is the copyright holder of the GPL license itself.
> In fact, the FSF advises authors to transfer copyright rights of their
> work to the FSF to avoid these problems.

Ah, so your point is that people should transfer their copyrights to an
organization dedicated to keeping the code free.  Well, maybe they should,
but that has nothing to do with which license is used.

> But, very few have done so.  It appears most GPL license proponents
> who write code they put under the GPL are more than willing to blather
> on about how great the GPL is, but when it comes to putting their
> money where their mouth is, they are unwilling to back up what they
> say.
> 
> The day that Linuc transfers his Linux copyright to the FSF I will
> start respecting what he has to say about licensing.  Until then,
> what he is saying is pure bullshit.

An interesting turn of phrase.

> Ted Mittelstaedt

-- 
Danny