During the continuing debates regarding the legality and fairness of re-licensing BSD licensed code, it was asked why the BSD license couldn't be extracted from Windows applications known to include BSD licensed code. OpenBSD creator Theo de Raadt explained, "what you ran strings on is not 'source code'. It was the binary," pointing to the first clause of the BSD license used by the code in question which says, "redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer." He then quoted the second clause of the BSD license, "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," and added, "if you take your Microsoft documentation, and dig really deep, you will find the whole notice copied into it there. Go ahead, you'll find it."

Theo continued, explaining that earlier versions of the BSD license used in OpenBSD and other BSD projects still had the advertising clause which required all advertising materials for products using their code to include a notice stating, "this product includes software developed by the University of California, Berkeley and its contributors." He added, "and.. once again, older copies of Windows DID follow that rule, too, just like Sun and everyone else," noting that one exception was AT&T and the Unix System Laboratories, "who included modified BSD manuals in their Unixware commercial distributions, and that mistake resulted in USL losing the USL v BSDI & University of California lawsuit. (I have simplified the situation, s/losing/settling at a serious loss/)."

He went on to add that the University of California, Berkeley, rescinded the advertising clause on July 22, 1999, "and since that time vendors are no longer required to follow term 3." He then explained, "after UCB rescinded that term, Todd Miller and I went and found all the code in the tree where that license term had been copied, and used by a new author -- and we contacted those authors and asked them to recind their term too. I think, in the end, they all did."

OpenBSD's current license is modeled after the ISC license, "with language 'made unnecessary by the Berne convention' removed". It is described as functionally equivalent to a two-clause BSD license, and reads as follows:

"/*
* Copyright (c) CCYY YOUR NAME HERE
*
* Permission to use, copy, modify, and distribute this software for any
* purpose with or without fee is hereby granted, provided that the above
* copyright notice and this permission notice appear in all copies.
*
* THE SOFTWARE IS PROVIDED "AS IS" AND THE AUTHOR DISCLAIMS ALL WARRANTIES
* WITH REGARD TO THIS SOFTWARE INCLUDING ALL IMPLIED WARRANTIES OF
* MERCHANTABILITY AND FITNESS. IN NO EVENT SHALL THE AUTHOR BE LIABLE FOR
* ANY SPECIAL, DIRECT, INDIRECT, OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES
* WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER IN AN
* ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF
* OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THIS SOFTWARE.
*/"

Theo noted that the only project he's aware of that is still using the third-term of the BSD license is NetBSD, "where their group still pushes developers to place new code under a full 4-term license. Sometimes we reluctantly include such code, hoping that one day this situation can be improved."

From: Jona Joachim [email blocked]
Subject: Re: That whole "Linux stealing our code" thing
Date: Wed, 5 Sep 2007 01:57:58 +0200

On Sat, 1 Sep 2007 08:40:30 -0500
Marco Peereboom [email blocked] wrote:

> Wrong wrong wrong.
> 
> You interpretation is not relevant.  The interpretation of the law is.
> You can't go around changing legal interpretation at your convenience.
> 
> "I interpret that downloading mp3s is like totally legal now" doesn't
> make it so.  Try it and see what happens.
> 
> Let me try once more to explain how this works.  Here is the license
> of a piece of code I wrote:
>  * Copyright (c) 2007 Marco Peereboom [email blocked]
>  *
>  * Permission to use, copy, modify, and distribute this software for
> any
>  * purpose with or without fee is hereby granted, provided that the
>  * above  copyright notice and this permission notice appear in all
> copies.
> 
> This means if you want to use my code in any way shape or form you
> MUST maintain the copyright & license.  It says on ALL copies
> therefore this includes other code, binary files, source, GPL goo etc.
> 
> The whole point is that one can't go around interpreting law.  That's
> a judge's job.  I am not interpreting any licenses for anybody, I am
> stating facts as they exist today in the frame of the law.  Don't like
> that?  I suggest suing someone to see if you can get a judge to agree
> with your interpretation; from there you can claim jurisprudence.
> 
> On Sat, Sep 01, 2007 at 08:52:45AM -0400, David H. Lynch Jr. wrote:
> > Theo de Raadt wrote:
> > >
> > >For the record -- I was right and the Linux developers cannot
> > >change the licenses in any of those ways proposed in those diffs,
> > >or that conversation (http://lkml.org/lkml/2007/8/28/157).
> > >
> > >It is illegal to modify a license unless you are the owner/author,
> > >because it is a legal document.  
> > 
> >    With respect to both you and Eban, I  would disagree..
> > 
> >    The law requires complying with the license not preserving it.
> >    The license is a part of the copyrighted work.
> >    It grants users rights beyond those of copyright law.
> 
> Wrong.  Copyright includes ALL rights; the license is what surrenders
> some of these rights.  Copyright is INCLUSIVE.  In other words if if
> write my totally 1337 program that has NO license it automatically is
> completely covered by copyright.  One can NOT copy it, can NOT modify
> it & can NOT distribute it.  It is the most restrictive license.
> 
> > 
> >    The ISC License requires little more than preserving the
> > copyright notice, not the license itself,
> >    And even that I would think is redundant as removing a copyright
> > notice would likely violate copyright law.
> 
> Not "likely"; it is breaking the law.
> 
> > 
> >    BSD Licensed code has found its way into proprietary products,
> > with no availability of source - and no preservation
> >    of license.
> 
> Try to run strings on windows command line utilities.  You'll see that
> they preserved the copyrights as required.
> 
> If you are not preserving the copyrights and the license in the file
> you are breaking the law.

I did run strings on some Windows XP command line tools just out of
curiosity and while I was able to find the copyright line I couldn't
find any license.
I don't want to reanimate this thread, I want it to die as quickly as
possible but I was just wondering why they don't need to provide the
license conditions.


Jona

-- 
"I am chaos. I am the substance from which your artists and scientists
build rhythms. I am the spirit with which your children and clowns
laugh in happy anarchy. I am chaos. I am alive, and tell you that you
are free." Eris, Goddess Of Chaos, Discord & Confusion



From: Theo de Raadt [email blocked]
Subject: Re: That whole "Linux stealing our code" thing 
Date: Tue, 04 Sep 2007 18:16:35 -0600

> I did run strings on some Windows XP command line tools just out of
> curiosity and while I was able to find the copyright line I couldn't
> find any license.

The license on that code says:

 * 1. Redistributions of source code must retain the above copyright
 *    notice, this list of conditions and the following disclaimer.

What you ran strings on is not "source code".  It was the binary.

Then license on the original code continues:

 * 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.

Well, if you take your Microsoft documentation, and dig really deep,
you will find the whole notice copied into it there.  Go ahead, you'll
find it.  Can't take that long.

Furthermore, older copies of the license used to say:

 * 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.

And.. once again, older copies of Windows DID follow that rule, too,
just like Sun and everyone else.  The only vendor who ever failed to
do this was AT&T / USL, who included modified BSD manuals in their
Unixware commercial distributions, and that mistake resulted in USL
losing the USL v BSDI & University of California lawsuit.  (I have
simplified the situation, s/losing/settling at a serious loss/).

That particular term was rescinded on July 22, 1999 by UCB, and since
that time vendors are no longer required to follow term 3.  Some still
do, though, since their licensing-in-advertising people haven't heard
the news.

After UCB recinded that term, Todd Miller and I went and found all the
code in the tree where that license term had been copied, and used by
a new author -- and we contacted those author and asked them to recind
their term too.  I think, in the end, they all did.

As far as I know the 3-term BSD license is totally dead, except in
NetBSD, where their group still pushes developers to place new code
under a full 4-term license.  Sometimes we reluctantly include such
code, hoping that one day this situation can be improved.

> I don't want to reanimate this thread, I want it to die as quickly as
> possible but I was just wondering why they don't need to provide the
> license conditions.

Microsoft, like everyone else, follows the license to a 'T'.


Sorry, I probably gave you more information than you wanted.



From: Brett Lymn [email blocked]
Subject: Re: That whole "Linux stealing our code" thing
Date: Wed, 5 Sep 2007 10:37:35 +0930

On Tue, Sep 04, 2007 at 06:16:35PM -0600, Theo de Raadt wrote:
> 
> As far as I know the 3-term BSD license is totally dead, except in
> NetBSD, where their group still pushes developers to place new code
> under a full 4-term license.  Sometimes we reluctantly include such
> code, hoping that one day this situation can be improved.
> 

The 4 term licence in NetBSD is mostly dead too.  It is not pushed as
desirable at all, it is up to the individual developer to use the
licence they feel appropriate and that seems, more often than not, to
be the 3 term licence.

Not that it matters much but I think the advertising clause is a waste
of time and does make life far more difficult for the people who do
want to comply with the licence conditions - they have to trawl
through all the code and pull out all the individuals that want their
names mentioned.  It made a little more sense when the sources were
under the BSD umbrella but now it's just silly having to list a cast
of thousands in any advertising.

-- 
Brett Lymn



From: Theo de Raadt [email blocked]
Subject: Re: That whole "Linux stealing our code" thing 
Date: Tue, 04 Sep 2007 20:55:29 -0600

> > As far as I know the 3-term BSD license is totally dead, except in
> > NetBSD, where their group still pushes developers to place new code
> > under a full 4-term license.  Sometimes we reluctantly include such
> > code, hoping that one day this situation can be improved.
> > 
> 
> The 4 term licence in NetBSD is mostly dead too.  It is not pushed as
> desirable at all, it is up to the individual developer to use the
> licence they feel appropriate and that seems, more often than not, to
> be the 3 term licence.

I beg to differ.  Do a grep of their entire tree.  You'll be surprised.

University of California, Berkeley rescinds advertising clause:

From: William Hoskins

July 22, 1999

To All Licensees, Distributors of Any Version of BSD:

As you know, certain of the Berkeley Software Distribution ("BSD") source
code files require that further distributions of products containing all or
portions of the software, acknowledge within their advertising materials
that such products contain software developed by UC Berkeley and its
contributors.

Specifically, the provision reads:

"     * 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."

Effective immediately, licensees and distributors are no longer required to
include the acknowledgement within advertising materials.  Accordingly, the
foregoing paragraph of those BSD Unix files containing it is hereby deleted
in its entirety.

William Hoskins
Director, Office of Technology Licensing
University of California, Berkeley

• Archive of above thread
• KernelTrap interview with Theo de Raadt