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Jose - Subject: Re: Re: Re: The Ultimate Insult ( Sep 8, 2007, 03:20:06 )
This post assumes we are considering a piece of code licensed simply and solely as BSD.
>> IANAL, so I don't know what is correct but the theory above (not Theo's) is believable.
No. It is wrong ...
>> I take BSD code and adhere to it as I modify it and distribute it to someone else (ie, I leave the notices and BSD terms); however, [here is what I am not sure of] I license this derivative work, which is based almost completely on that sole file, to someone else as GPL (even if the changes are slight.. how substantial must they be to be considered a derivative work?). The new recipient now isn't under the BSD license (though the BSD license text is still part of the file) so can ignore the BSD license text that is printed on the file. The theory here is that the BSD only applies one generation down (whomever accepts it from the BSD author) and that derivative works can be relicensed as long as they adhere to the conditions under which you got the original work.
... because creating derivative works is reserved by copyright law [Title 17 USC] in section 106(2) ...
>> 106. Exclusive rights in copyrighted works >> Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: >> (1) to reproduce the copyrighted work in copies or phonorecords; >> (2) to prepare derivative works based upon the copyrighted work; >> (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
[BTW, 107 through 122 involve exceptions. Eg, 107: "fair use"]
... and the BSD license does not allow unrestricted derivations. Specifically, these lines ...
>> All rights reserved. >> Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: >> Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.
... allow one to modify the file and redistribute but at no point (reading the rest of BSD) does the license say that the code can be *relicensed* under different terms. By relicensing I think I mean that unless the copyright owner allows you to change the rights/terms that apply to users/distributors/etc(see 106) of the work, then you can't; thus, you can't make this piece of code GPL or anything else ever (unless the cp owner gives you permission). In other words, the only way this piece of code can ever be used (distributed, etc, as per Section 106) is under the terms of the BSD exactly, not one condition less or more, as those are the only rights the author gives any recipient, and copyright law reserves that right "exclusively" with the author. [Note I assumed at the very top that the work under consideration was licensed BSD only. Note also that there are exceptions that allow people to do with the work various things: eg, Sections 107 fair use and 109 sell/dispose of copy you own (see definition of "copy" in Section 101).]
But there are some more things to consider. Section 103 says that a derivative work or compilation has its own copyright but that this "extends" only to new material; ...
>> Subject matter of copyright: Compilations and derivative works >> (b) 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.
... thus, the BSD license continues to apply to the code from the original author/license as it gets hacked up. The new code (and organization of lines of code, files, etc) belongs to whomever else made it and is licensed as that other person wishes. BSD can't place restrictions on that new license (of the deriv/compil) except indirectly were it to have said something like "if such and such is not met then you can't derive from this BSD code." BSD doesn't say anything like this, however (the GPL does say something like that). We can license the derivation as GPL. The GPL won't apply to the component pieces, meaning that (for example) the GPL license can't force you to provide the BSD source for the components should you distribute a binary; however, if you do provide the source to the BSD portions, BSD requires that the BSD license (copyright notice, list of conditions, and disclaimer) be included.
Someone please post if you notice a mistake. For example, until this little study, I would have thought that this prior paragraph would be incorrect (meaning that BSD source would have to be distributed if the "whole thing" was made GPL).
