Bob Young writes a letter to Darl [LWN.net]

Bob Young writes a letter to Darl

Posted Apr 8, 2004 2:30 UTC (Thu) by bojan (subscriber, #14302)
In reply to: Bob Young writes a letter to Darl by danw6144
Parent article: Bob Young writes a letter to Darl

I was re-running this scenario with the original BSD licence multiple times through this imaginary court case and the conclusions came up exactly the same. This is from the original BSD licence:

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Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:

1. Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.
2. 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.
3. All advertising materials mentioning features or use of this software must display the following acknowledgement:

This product includes software developed by the University of California, Berkeley and its contributors.

4. Neither the name of the University nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission.
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Now, to view this in the light of the crucial part of this court case, it would go like this:

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FSF: But your Honor the defendant failed to publish a copyright notice and the advertising clause! Sections 1 and 3 of the licence specifically ask for this. The defendant must have met the conditions of the licence if he wanted to get permission to copy.

JUDGE: What say you defendant Doe?

DOE: Your honor "meeting of the terms and conditions" is addressed nowhere in copyright law. An extensive search of the Copyright Act reveals no reference to this concept. There's no Restatement (Second) of Copyrights mentioning anything about "meeting of the terms and conditions". There's a Nimmer on Copyright, but there's nothing on "meeting of the terms and conditions" there either. The term has no meaning promulgated under copyright law, therefore it's just verbiage with no legal meaning or effect. The "you may copy and distribute" is precisely defined in the Copyright Act and that's all I did.
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Absolutely no difference to the GPL, except that the word "accept" was substituted with "meet".

However, Copyright Act explicitly talks about "terms and conditions" in a number of its sections, so one would have to conclude that "terms and conditions" are an integral part of copyright licensing and the "extensive search" would actual turn up quite a number of hits (uness done by MIT mathematicians that found Unix code in Linux :-).

I don't see any difference whatsoever here. Basically, your theory boils down to this:

It is not possible to have conditions attached to a copyright licence without involving the contract law.

Given what licences are (i.e. permissions for what otherwise wouldn't be permissible by law) and the fact that they are usually associated with property grants (i.e. copyright is property) and the fact that they _always_ have conditions attached (e.g. you may enter my property on Sunday only), I think your theory is quite incorrect.

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