[linux-elitists] The breadth of SCO's claims

Aaron Sherman ajs@ajs.com
Thu Jun 26 06:55:19 PDT 2003


On Tue, 2003-06-24 at 11:25, Karsten M. Self wrote:

> The stated goal of several projects (OpenBSD comes to mind) is to use 
> licensing terms which don't restrict use within proprietary products, if
> that is the intent of the user.

I've always had a bit of an itch in the back of my head over this one...
It's not that I'm a rabid GPL guy (though I think the GPL was a
brilliant bit of legal hackery), it's just that the BSD license has
always seemed to me to be ambiguous in an odd way....

For example, if you wrote a chunk of code (let's say part of BSD) and
released it. Then MS incorporated that code and released it as their own
software.

That's allowed under the terms of the license, and they're not doing
anything wrong. BUT... what does that DO to the software that it's
incorporated into? You still retain ownership of your code, that cannot
change unless you sign it away or make the code public domain. So, the
derived work is partly yours and partly theirs under a joint copyright.

Ok, so far so good. Now the question becomes this... how much control do
you retain?

Let's look at the license (FreeBSD
http://www.freebsd.org/copyright/freebsd-license.html):

        "Redistribution and use in source and binary forms, with or
        without modification, are permitted..."

Ok, so Redmondco gets to redistribute XP in source and binary form with
or without modification (they inherit that right from the license under
which they got BSD).

        "Redistributions of source code must retain the above copyright
        notice [...] in binary form must reproduce the above copyright
        notice, this list of conditions and the following disclaimer in
        the documentation"

Here's the part that grabs me! This is a clear assertion of co-ownership
of the code, and nothing in the license disclaims any other rights (as
the GPL does explicitly, for example). So, what rights do you have over
YOUR code? Well, let's see. You can certainly use your code, no? So
Micosoft has no power to enforce licensing terms over you, do they? I
cannot imagine how they would.

Can you also re-distribute? Hmm, that's a tough one. Probably not. You
do not have the right to redistribute THEIR code, unless of course you
read the BSD license VERY broadly and say that because the licensing
terms must be replicated in source and binary releases, that the terms
apply to derived works. That's clearly not the INTENT of the BSD
license, but I'm not sure how it would play in court.

The other question is this: who are the parties to sub-licenses? If, as
co-copyright holder, you are a party to all licenses then you've already
given up (I think) your right to set any terms, by allowing
redistribution in the BSD license, however you have not given up the
right to enforce licensing terms to which you are a party. Shouldn't you
be able to go to, say, SCO and audit their use of Microsoft Windows as a
co-copyright holder and party to the license? Shouldn't you be able to
force them to pay Microsoft for any licenses that they're not current
on?

For that matter, should you not be able to go to SCO's customers and
audit their licensing for UnixWare (also a beneficiary of BSD code)?
After all, it's your code too!

Ah the PR nightmare THAT would cause....

-- 
Aaron Sherman <ajs@ajs.com>
Senior Systems Engineer and Toolsmith
"It's the sound of a satellite saying, 'get me down!'" -Shriekback

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