Date: Thu, 18 Mar 1999 18:05:34 +0000 (GMT) From: Terry Lambert <tlambert@primenet.com> To: rab@pike.cdrom.com (Robert A. Bruce) Cc: freebsd-advocacy@FreeBSD.ORG, rab@pike.cdrom.com Subject: Re: BSD advertising clause Message-ID: <199903181805.LAA05591@usr04.primenet.com> In-Reply-To: <199903180957.BAA09798@pike.cdrom.com> from "Robert A. Bruce" at Mar 18, 99 01:57:34 am
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> I saw an article a while ago by a law professor from Berkeley who felt
> it was invalid. I don't remember her name, and I can't find the article,
> but as I recall, she made two arguements:
>
> 1. It violates the "fair use" provisions of copyright law. Anyone has
> a right to mention things like features and use of software, and you
> cannot use copyright conditions to deprive someone of these rights.
This is utter BS. I can't believe a law professor from Berkeley who
was willing to make such comments in a public forum has not read the
law; this makes me doubt either your veracity or your memory. Here is
the relevent cite:
---------------------------------------------------------------------
United States Code
TITLE 17 - COPYRIGHTS
Sec. 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the
fair use of a copyrighted work, including such use by
reproduction in copies or phonorecords or by any other means
specified by that section, for purposes such as criticism,
comment, news reporting, teaching (including multiple copies
for classroom use), scholarship, or research, is not an
infringement of copyright. In determining whether the use
made of a work in any particular case is a fair use the
factors to be considered shall include -
(1) the purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit
educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or
value of the copyrighted work. The fact that a work is
unpublished shall not itself bar a finding of fair use
if such finding is made upon consideration of all the
above factors.
Sec. 117. Limitations on exclusive rights: Computer programs
Notwithstanding the provisions of section 106, it is not an
infringement for the owner of a copy of a computer program to
make or authorize the making of another copy or adaptation of
that computer program provided:
(1) that such a new copy or adaptation is created as
an essential step in the utilization of the
computer program in conjunction with a machine and
that it is used in no other manner, or
(2) that such new copy or adaptation is for archival
purposes only and that all archival copies are
destroyed in the event that continued possession
of the computer program should cease to be
rightful. Any exact copies prepared in accordance
with the provisions of this section may be leased,
sold, or otherwise transferred, along with the
copy from which such copies were prepared, only as
part of the lease, sale, or other transfer of all
rights in the program. Adaptations so prepared may
be transferred only with the authorization of the
copyright owner.
---------------------------------------------------------------------
This pretty blatantly contraindicates your claim. Note that the
people who drafted the law know the disctinction between the words
"use" and "utilize", unlike Richard Stallman.
> 2. It constitues "restraint of trade", because it puts conditions not
> only on the party doing the copying, but also on third parties such
> as distributors and resellers. In the US, once you sell a product,
> you cannot put any conditions on how it will be sold, such as price
> levels, discounts, channels, or advertising restrictions. That is
> collusion and restraint of trade.
This is also utter BS. I can cite here, as well, but the cite will be
significantly longer, and therefore harder to follow for a layman who
has not invested significant time studying law.
The problem with this argument is the construction; it would be true
if what were being sold were the cod, but that is not what is sold
when you obtain software. Instead, what you are buying is a license
to use the software. This is why ownership of the media and
accompanying materials is retained by the company granting the license.
Because the construction is preconditioned on a sale of the software,
not the license, and there is no sale of the software, the conclusion
is not supported.
> The "advertising clause" is probably unenforcable. But that doesn't
> seem to matter, since no one seems interested in enforcing it anyway.
It's enforcable. It was a primary basis of the UCB countersuit, and
it was not summarily thrown out as a faulty construction. This is a
matter of public record, available to anyone who sends a self addressed
stamped envelope, a FOIA request form, and copying fees to the 5th
district court clerk's office. Alternately, you can present in person
and merely pay a copying fee.
The same process can get you a copy of the preliminary Opinion which
was rendered when the case was remanded.
> The only effect it has is to provide ammunition to detractors of the
> BSD license, and maybe enough legal uncertainty to convince a few people
> to avoid using BSD software.
No more ammunition than the viral nature of the GPL. The GPL doesn't
qualify as restraint of trade, since, like the UCB license, it's a
license, not a transfer of ownership. But it *does* qualify as
racketeering under the RICO statutes. Check out the legal basis for
the McCarthy-era HUAC anti-communist witch hunts.
> I have never talked to anyone who thinks it is a good idea. We should
> try to get it revoked.
Well, then you've never talked to a developer. You can have my claim
credit clause when you pry it from my cold, dead hands; it's the only
thing preventing my code from being infected by the GPL such that I
can never use my code in a commercial product unless I want to become
a job-shop programmer ultimately working for the "GNU Manifesto".
If you want an alternate license for my code, I will be happy to
provide one that specifically prohibits licensing of it or of any
derivative works under terms requiring the distribution of source.
I have been thinking about relicensing my code under such a clause
for a long time time now. I feel that if Cisco, for example, can't
use my networking code in their products, that it really doesn't
have the intended effect of raising the bar for everyone; it's
unlikely that Cisco will code up a new frob if the vast majority of
the world doesn't demand it. And they won't, because the vast
majority of the world uses Cisco, and it doesn't have the new frob.
If the only people for whom the bar is raised is the subset of
society holding Marxist philosophies, what is the point of putting
the code out there? Why put it out there for anyone, if I'm not
putting it out there for everyone?
Terry Lambert
terry@lambert.org
---
Any opinions in this posting are my own and not those of my present
or previous employers.
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