Cc: Theodore Tso <tytso@...>, Adrian Bunk <bunk@...>, Can E. Acar <can.acar@...>, <misc@...>, <linux-kernel@...>, Daniel Hazelton <dhazelton@...>, Eben Moglen <moglen@...>, Lawrence Lessig <lessig_from_web@...>, Bradley M. Kuhn <bkuhn@...>, Matt Norwood <norwood@...>
A apologize for the error in attribution.
No, you do not need a license to use MS Windows. Microsoft may choose to
compel you to agree to a license in exchange for allowing you to install a
copy, but that is not quite the same thing.
If you read United States copyright law, you will see that *use* is not one
of the rights reserved to the copyright holder. Every lawful possessor of a
work may use it in the ordinary way, assuming they did not *agree* to some
kind of restriction.
My point is that you *cannot* prevent a recipient of a derivative work from
receiving any rights under either the GPL or the BSD to any protectable
elements in that work.
C most certainly would have a BSD license, should he choose to comply with
terms, to every protectable element that is in both the original work and
the work he received.
C has no right to license any protectable element he did not author to
anyone else. He cannot set the license terms for those elements to C.
Again, read GPL section 6. (And this is true for the BSD license as well, at
least in the United States, because it's the only way such a license could
work.)
Neither the BSD nor the GPL ever give you the right to change the actual
license a work is offered under by the original author. In fact, they could
not give you this right under US copyright law. Modify the license *text* is
not the same thing as modifying the license.
In practice it doesn't matter. All that matters is that you have a single
fixed form or expression that contains creative elements contributed by
different people potentially under different licenses. The issues of whether
it's a derivative work or a combined work and whether the distributor has
made sufficient protectable elements to assert their own copy really has no
effect on any of the issues that matter here.
No, he can't. He can only license those protectable elements that he
authored.
There is no way you can license protectable elements authored by another
absent a relicenseing agreement. The GPL is explicitly not a relicensing
agreement, see section 6. The BSD license is implicitly not a relicensing
agreement.
A license is not just a promise not to sue, it's an *enforceable*
*committment* not to sue. It's an explicit grant of permission against legal
rights.
Would you argue that I can license Disney's "The Lion King" movie to you if
I promise not to sue you over any (no) rights that I possess to it?
Right.
You are confusing licenses of two very different types. The BSD and GPL
licenses only cover modification and distribution, two rights you do not get
to MS Windows at all. *Use* is not restricted under copyright.
You are comparing apples to oranges.
It is misleading to say you "get a license for the whole MS Windows from
only MS". You do not need a license to *USE* a copyrighted work in the
United States. You only need a license to copy, distribute, or modify the
work. These are rights you *never* *get* to MS Windows.
There is simply nothing remotely comparable to the BSD or GPL license in the
case of MS Windows. There is no grant of additional rights beyond those you
get automatically with lawful possession (such as use).
Licenses that only grant additional rights and do not restrict use, such as
the GPL and BSD license, are not remotely comparable to EULAs or
shrink/click wrap agreements. They follow completely different rules and are
basically incomparable.
If MS wished to grant someone the right to modify or redistribute Windows,
that person would also need to obtain the right to modify or distribute
protectable elements not authored by Microsoft. The only way they could
obtain those rights, assuming Microsoft didn't have written relicensing
agreements, is from the original author under the original licenses.
DS
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