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Dispelling BSD License Misconceptions
AlanS2002 writes "Groklaw is hosting an article by Brendan Scott which looks at the misconceptions surrounding the BSD license. From the article: 'We observe that there exists a broad misconception that the BSD permits the licensing of BSD code and modifications of BSD code under closed source licenses. In this paper we put forward an argument to the effect that the terms of the BSD require BSD code and modifications to BSD code to be licensed under the terms of the BSD license. We look at some possible consequences and observe that this licensing requirement could have serious impacts on the unwary.'"
One tidbit seems to be ignored--this would only apply under AUSTRALIAN law, per the article.
But, if true, it might mean that the BSD is indeed "viral" in Australia!
Wonder what Microsoft might have to do about all that old BSD networking code they use if this is true?
So they are not relicensing the BSD licensed components. They are providing those parts of the software under the license of which they were required and they are doing all they are required to use that code by providing the license in the documentation. The power of this is that the BSD license doesn't require the source code to be released to the user (and Brendan Scott, the author of the paper, recognises this in section 7.3) so the company can keep their modifications secret.
How we know is more important than what we know.
The BSD licence does not say that any modifications must also be released under the BSD licence. It does say that that a copy of the original licence, copyright notices, disclaimer, etc, must be including in any redistribution of the source or binary.
In fact, the BSD licence does not say anything about licensing any code—at all.
I remember when legal used to mean lawful, now it means some kind of loophole. - Leo Kessler
It seems that this lawyer has not been trained in computer science because he is glossing over an important detail of the license to reach his incorrect conclusion. The BSD license says (using the author's numbering and my emphasis):
"2 Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:
3 * Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.
4 * Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution.
5 * Neither the name of the [organization] nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission."
The license requires, per clauses 2-4, that a user reproduce (a) the copyright notice, (b) the list of conditions and (c) the disclaimer of the original license. The author reads this as requiring that the entire BSD license be reproduced in any redistrubtion or use of the code. But this is only true if (a), (b) and (c) comprise the entirety of the BSD license. I argue that they do not!
The key question is, "What is the 'list of conditions' that must be reproduced?" The author incorrectly claims that [2] is part of the list of conditions that must be maintained by a user, which would create a viral mechanism that this paper describes.
It is obvious from [2]'s use of the phrase "the following conditions" and the fact that [3, 4, 5] are preceded by asterisks and use the phrase "this list of conditions" that [2] is not intended to be part of the list of conditions. The list of conditions only consists of [3, 4, 5]. Therefore, redistributors / users are not required to maintain the original grant of the license [2] in their use or redistribution of the code.
The flaw in the author's argument is that he is incorrectly including the original grant of the license [2] into the list of conditions [3, 4, 5]. The license truly only requires that users reproduce clauses [1, 3, 4, 5, 6] of the BSD license in their redistrubtions or use.