Relicensing: what's legal and what's right

Posted Sep 4, 2007 17:34 UTC (Tue) by butlerm (subscriber, #13312)
Parent article: Relicensing: what's legal and what's right

As a practical matter, I think it is counterproductive to encumber a driver so that the original authors cannot benefit from your additions.

However, Theo de Raadt's assertion about dual licensed files is without foundation. The rights that a license issuer has are derived from the copyright he holds in the original work. However this copyright does not extend to additions made by others. 17 USC 103 states:

"The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material."

So if you start with a dual licensed file, and add additional material, the dual license only necessarily extends to the pre-existing material. The additional material is copyright by the author - who may license those additions in any way he pleases, provided that distribution of the whole is consistent with the license that governs each of the copyrighted portions.

And since the BSD license does not have any GPL style restrictions on the creation or distribution of derived works, any author who wishes to add GPL only material to a dual licensed file *effectively* converts it to a GPL file, because the BSD license only extends to the original pre-existing material, by virtue of the original author's copyright.

The BSD license text must be preserved of course, but nothing stops someone from writing a preamble that explains which portions of the file were written by which authors, and hence subject to their preferred licenses alone, and which portions are sufficiently intermixed that they (like the file as a whole) are governed by the restrictions placed by all of the licenses collectively.

I do find it highly ironic that Mr. de Raadt is trying to claim GPL license like properties for a license that has none. Once GPL, always GPL - yes. Once BSD, Always BSD? Not except in the most nominal of senses.

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Relicensing: what's legal and what's right

Posted Sep 4, 2007 19:41 UTC (Tue) by ncm (guest, #165) [Link] (5 responses)

It is simply not true that the BSD license text in a dual-licensed work "must be preserved of course". Yes, it says so in the BSD license text itself, but the dual-licensing specifically allows you to ignore any or all requirements in the BSD text, if you choose to distribute under the other license -- not excepting that one.

Theo is completely wrong on his legal argument. That doesn't mean he's wrong when he says it's rude not to dual-license further changes. Rudeness is, after all, something he knows far more about than most of us.

Non-BSD people often wonder at the seeming logical loopiness in BSD license reasoning. However, there is method to be discovered there, although it took me a long time to find it. The freedom BSD people want to retain is the right to take the code they have written (and the code in which it's embedded) and use it in any employer's product, even if that product will be proprietary. If they and their colleagues release their code under GPL, then the list of employers where they can use their own code gets much smaller.

The real reason for the BSD license

Posted Sep 4, 2007 21:11 UTC (Tue) by clugstj (subscriber, #4020) [Link]

"The freedom BSD people want to retain is the right to take the code they have written (and the code in which it's embedded) and use it in any employer's product, even if that product will be proprietary."

This also took me a long time to realize. I've never seen a justification for the BSD license that acknowledged this (or disputes it for that matter).

Relicensing: what's legal and what's right

Posted Sep 5, 2007 5:58 UTC (Wed) by butlerm (subscriber, #13312) [Link] (1 responses)

"It is simply not true that the BSD license text in a dual-licensed work 'must be preserved of course'."

Actually, I think it depends on the way the language combining the two licenses is written. It could be explicitly written to allow authors of derived works to drop one of the licenses. It also could be explicitly written to require both licenses to be preserved (with regard to the pre-existing material).

If the language isn't explicit, we probably won't know the answer until a court sets a legal precedent somewhere, so it is probably best to error on the side of safety.

Relicensing: what's legal and what's right

Posted Sep 6, 2007 7:45 UTC (Thu) by ekj (guest, #1524) [Link]

In general yes.

But in this particular case, BSD+GPL, it has to be "take your pick", because the only alternative would be GPL-only. I'll explain.

If you aren't allowed to "take your pick", but are required to honour each and every term in *both* licenses, then it follows that not just every BSD-term must be followed, but also every GPL-term.

Everything that is allowed with a GPL-licenced program is however *also* allowed with a BSD-licenced one. But not vice-versa.

In other words, if you *pretend* that a BSD-licenced program is really GPL, you're still adhering to each and every term of the BSD-licence.

If on the other hand you pretend that a GPL-licenced program is really BSD, you're breaking quite a few terms of the GPL, namely those that require that you give changes back under the same terms when you redistribute.

Relicensing: what's legal and what's right

Posted Sep 6, 2007 8:43 UTC (Thu) by lysse (guest, #3190) [Link] (1 responses)

What happened is very simply explained if one assumes that Theo initially thought that the code in question was not dual-licensed, but only BSD-licensed. As usual it got lost in the noise, but his earliest statements said as much. And his argument - that the terms of the BSD licence absolutely forbid removing the text, and anyone so doing would lose any of their BSDL-granted rights - would be perfectly correct for code which was originally only available under a BSD licence.

Relicensing: what's legal and what's right

Posted Sep 6, 2007 16:22 UTC (Thu) by amikins (guest, #451) [Link]

If you look at the cited text from Theo, he's specifically discussing dual-licensing. There was quite an extensive argument about it between him and Alan Cox.

Relicensing: what's legal and what's right

Posted Sep 7, 2007 23:30 UTC (Fri) by giraffedata (guest, #1954) [Link]

"The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material."
So if you start with a dual licensed file, and add additional material, the dual license only necessarily extends to the pre-existing material. The additional material is copyright by the author - who may license those additions in any way he pleases, provided that distribution of the whole is consistent with the license that governs each of the copyrighted portions.

You've read that backwards. The whole point of derivative work copyright is that the first author has rights over the entire derivative work done by the second author. (A classic derivative work is a translation. The translation contains no words from the original work, but you still need the original author's permission to copy the translation).

This section says 1) you don't need the second author's permission to copy the first author's pieces; and 2) the permission you need from the first author to copy the derivative work isn't any greater than what you need to copy his original work. In particular, his clock runs out N years after the original was published, not N years after the derivative was published.