From owner-freebsd-advocacy  Mon Sep 18 22: 7:30 2000
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From: Terry Lambert <tlambert@primenet.com>
Message-Id: <200009190507.WAA12169@usr02.primenet.com>
Subject: Re: RWS
To: bright@wintelcom.net (Alfred Perlstein)
Date: Tue, 19 Sep 2000 05:07:14 +0000 (GMT)
Cc: marko@FreeBSD.ORG (Mark Ovens),
	relyod@co-operation-ireland.ie (Mike Doyle),
	freebsd-advocacy@FreeBSD.ORG
In-Reply-To: <20000918102322.A15156@fw.wintelcom.net> from "Alfred Perlstein" at Sep 18, 2000 10:23:22 AM
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> > Just remind me, what exactly was the advertising clause? ISTR that it
> > was something to do with displaying a credit for the CSRG (or
> > Berkeley). If that was the case, what was the FSF's gripe? Fire up
> > emacs, gdb, etc. and what do you get? An advert for GNU/FSF.
> 
>   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.
> 
> Which sorta stinks because if you have a television add it basically
> means that at the end you need to scroll that, even worse a lot of
> individuals have files under the copyright with that clause as well
> so that doing a television add is pretty much a pain in the butt.

Alfred, this is wrong.

See the part about "mentioning features or use of this software"?

If you don't mention "Now with BSD technology!" or "Includes TCP/IP!",
then you don't have to say squat in the advertising materials.

RMS claims that this is an "advertising clause", but in fact, it's
what's called a "claim credit clause"; its intent is to keep you
from claiming credit for someone else's code:

	"AlfredOS!  With the best TCP/IP money can buy!"

Legally, there is an argument that, on a purely constructionist
basis, one can not enforce a "hold harmless" clause (clause 2 of
the two clause license) without also enforcing a claim credit
clause.  The argument is based on the idea of someone taking your
work, adding buggy code to it, selling it, and then causing harm
as a result.  The original author still suffers the percentage
of liabilty relative to their proportion of the authorship, even
if their code was not, itself, buggy; this as a result of their
contributory negligence in making the source code available.

All in all, an icky argument, but one that it would be hard to
defend against without significant legal resources... and the
original author probably wouldn't have them, and so would be the
target weakest link for litigation by the harmed party, to use as
leverage against the actual guilty party.  The harmed party might
feel bad about tarring the original author with the same brush,
but... anything to win a case.


					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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