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Re: Mathworks-hosted GPL'd software

From: Jaroslav Hajek
Subject: Re: Mathworks-hosted GPL'd software
Date: Mon, 15 Feb 2010 11:01:35 +0100

On Mon, Feb 15, 2010 at 10:10 AM, Judd Storrs <address@hidden> wrote:
> On Mon, Feb 15, 2010 at 2:13 AM, Jaroslav Hajek <address@hidden> wrote:
>> BSD is not a copyleft license, so it's allowed to add restrictions
>> like this, isn't it? I agree this was probably a strong reason to get
>> rid of copyleft licenses, which would not allow them to do this.
> I very, very much doubt they are allowed to modify the licenses at all.
> At the risk of getting the honourable RMS to jump on me again with his
> samurai sword, the BSD community (and I'm not sure why but for some
> reason OpenBSD comes to mind) can become quite hostile upon
> discovering that someone is distributing trivially modified
> BSD-licensed source with substituted, modified or deleted copyright
> headers.

Sounds interesting. Does it also cover the case when a company tries
to impose additional restrictions to the license through ToS? Will
they become hostile, too? I'm looking forward to see it.

> The BSD reasoning is as follows: If changes do not rise to the level
> of creating a derived work you have no copyright claim to the modified
> file and you have no authority to modify the licensing at all.

I'm not sure this is true. When I legally obtains a licensed copy, I
am entitled to redistribute it under a different license, if my
license allows me to do so. There is no requirement to grant the third
party all rights that I have. The Czech copyright law explicitly says
"Je-li tak sjednáno ve smlouvě, může nabyvatel oprávnění tvořící
součást licence zcela *nebo zčásti* poskytnout třetí osobě
"If the license agreement allows it, the licensee can extend the
rights granted by the license completely *or partially* to a third
party (a sublicense)". It is explicitly stated that you can further
limit the license, unless of course the license allows it. The BSD
license, as far as I understand it, does not. Is the US copyright law
different in this regard?

> Note well that the GPL goes to somewhat great lengths to explicitly define
> what is considered a derived work. The BSD does not.


address@hidden:~> wget -q -O - |
grep derived

Do you mean this paragraph?

>To "modify" a work means to copy from or adapt all or part of the work in a 
>fashion requiring copyright permission, other than the
> making of an exact copy. The resulting work is called a "modified version" of 
> the earlier work or a work "based on" the earlier work.

> What is considered a derived work of a BSD-licensed file relies on
> case law (i.e. legal tradition and guestimation by lawyers) which is
> really pretty dangerous because courts can and do change their minds
> for strange and mysterious reasons. It's much better to have things
> spelled out as is the case in the GPL. The BSD understanding of what
> constitutes a derived work resulted from a very lengthy and ugly US
> lawsuit with AT&T that resulted in separating the UNIX code base into
> "BSD-owned" and "AT&T-owned" and "jointly-owned" contributions. The
> rules they used were very possibly specific to US court law and even
> possibly to that specific court room ;)
> In any case, merely adding an additional restriction to the license
> clearly does not result in a derived work except in bizzaro world.
> Since they can't modify them, the best Mathworks can hope do is
> attempt to make it difficult to access to the files if they are
> interested in being hostile. Once anyone obtains BSD-licensed source
> code through whatever means, the copyright holder has granted you
> permission to use and redistribute it according to the terms of the
> BSD license.

The problem is that you actually do not obtain a BSD-licensed source.
By downloading anything from the FX service, you agree to the ToS, so
you're bound by the additional restrictions therein. I don't see how
BSD (unlike GPL) explicitly forbids adding additional restrictions. I
don't see anything in the copyright law (at least the Czech flavor)
that forbids this.
I'll be glad if you can disprove my reasoning, but merely saying that
the BSD community are smart people that would never allow this is no
good. I can equally say that the MathWorks employs smart lawyers and
they surely didn't include this clause in the ToS for nothing.


RNDr. Jaroslav Hajek, PhD
computing expert & GNU Octave developer
Aeronautical Research and Test Institute (VZLU)
Prague, Czech Republic

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