Would appreciate getting copy of BK/Pro no-compete clause

Would appreciate getting copy of BK/Pro no-compete clause

Everyone seems to be surmising that the BKCL (licence of the commercial version) has recently gained a non-compete clause similar to what the BKL had. The inference seems reasonable, but would be good to confirm. Would someone who's a commercial licensee be good enough to e-mail me that paragraph from the "bk bkcl" output (or whatever BK directive is required, these days)?

I ask in part because I track the history of SCMs available for Linux, and do comparative analysis of proprietary Linux apps' licenses on my Web site. It would thus be useful to get the exact text of Larry and co's recent changes.

Some the firms involved, over the years, have objected to my posting licence excerpts (or entire licences) as part of analyses on my site, a couple going so far as to assert copyright infringement. While I'm sympathetic to their concerns about commercial rights and marketing position, I do think the legality and propriety of licence analysis is well established, on several grounds. (Please pardon USA-centrism in the following; it's the applicable law in this case.)

• I doubt that the judge in any likely tort action would rule a software licence to qualify as a "creative work" at all, within the meaning of that term in copyright law. Mere text is not copyrightable at all (Harper and Row, Publishers, Inc. v. Nation Enterprises; Feist Publications, Inc. v. Rural Tel. Serv. Co.) and some degree of creativity must be present (1 M. Nimmer and D. Nimmer, Copyright ss 2.01[A], [B]).
• Purely functional elements in an alleged creative work are not subject to copyright encumbrance (Sega Enterprises v. Accolade, Inc.; NEC v. Intel). It strikes me that a software licence consists of nothing but functional content.
• Usage for in criticism, reviews, news reporting, teaching, or research (with the strength of your claim depending on other factors, such as whether your usage was non-profit, the nature of the copyrighted work, the amount and fraction of your excerpt, and the effect your usage has on the market for the original work) is of course lawful as a result of the "fair use" defence (e.g., see Sega case).

No firm has thus far attempted legal remedies after I've politely pointed the above out. Although I'm not an attorney (and nobody else should take personal or business stances based on nothing better than my analysis, please), it strikes me that this is because the complaining parties either didn't know the law or were bluffing quite shamefully.

Baseless legal threats tend to work extremely well against computerists, I've noticed -- copyright demands and trademark-infringement claims, mostly. A cynic might speculate that that's why they're attempted so often. It would be refreshing if they were to not prevail quite so readily. (Of course, this will require computerists to be more consistently careful about their stances and research thereof.)

Anyhow, the clause in question, if present, probably includes the phrase "this License is not available to You if You and/or your employer develop, produce, sell, and/or resell a product which contains substantially similar capabilities". I'd appreciate anyone having access to the licence e-mailing me the paragraph that contains that wording or similar in BK/Pro v. 3.2.6 (current) or other recent versions -- or would write to me saying no such clause is present.

Rick Moen
rick@linuxmafia.com