The BSD Gift of Freedom

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The first open source license, the original BSD (Berkeley Software Distribution), was designed to permit the free use, modification, and distribution of certain University of California software without any return obligation whatsoever on the part of licensees .

The term academic freedom usually means the freedom of a (tenured) professor to speak openly without risking his or her job. This presumably results in a dynamic and diverse community of thought that enriches everyone's academic experience and results in the exploration of new ideas. But that isn't the type of academic freedom that open source deals with.

Academic open source licenses promote a slightly different kind of freedom, relating to the mission of an academic institution to promote education and scholarship. Teachers are encouraged to publish their ideas rather than hide them under a cloak of secrecy . Students are expected to take what they learn and apply it to their own work, creating new ideas in turn . In pursuing this type of academic freedom, universities often forgo an immediate profit motive and instead consider the bigger benefit to society of releasing their intellectual property to the public. Of course, not all universities practice this ideal all the time.

The University of California decided to use the BSD license to promote this latter type of academic freedom. It apparently concluded that some of its software would be more valuable if it were made freely available for all to copy, modify, and distribute than if the University were to keep it secret or to attempt to sell it privately.

Some suggest that the University could have accomplished this merely by waiving its copyright or dedicating its software to the public domain. Under the copyright law, though, there is no mechanism for waiving a copyright that merely subsists , and there is no accepted way to dedicate an original work of authorship to the public domain before the copyright term for that work expires . A license is the only recognized way to authorize others to undertake the authors' exclusive copyright rights.

In Chapter 4, I created a simple license to accomplish this goal:

Simple License: The copyright owner of this software hereby licenses it to you for any purpose whatsoever.

(This isn't the BSD license. The grant in the BSD license is longer and more complex, but I'll get to that in a bit. I'm using this one- sentence Simple License for illustrative purposes only.)

The Simple License, if properly accepted, is a unilateral contract in which only the copyright owner has offered promises, in particular the promise to let you use the software as you see fit. The licensee has promised nothing but is nevertheless bound to the terms and conditions of the contract if he or she uses the software as licensed.

Such unilateral contracts are formed all the time in daily life, although we don't often think about their terms and conditions when we enter into them. That is because, for many commercial transactions, we leave it to the law to specify the implied terms of contracts that we enter. You can take comfort when you go to a store to buy a toaster that the store will return your money if the toaster is unsatisfactory, or will repair or replace the toaster if it doesn't work as advertised. The only way for a store to avoid its implied promises is to expressly disclaim them; it may sell you the toaster "AS IS" and "subject to all flaws."

Notice that you, the consumer, don't promise anything to the store in return. You can use the toaster however you want, or not use it at all. The store and you have a contract even though only the store has made promises ”in this case implied ones ”about efficacy and safety.

As with the purchase of a toaster, every other condition in the Simple License could be left to the legal defaults for software licenses ”whatever those defaults are. Such a one-sentence license is fully compatible with the Open Source Principles, and in theory at least it could be approved by Open Source Initiative as a valid open source license.

What are the licensor 's implied promises in this Simple License? The law prescribes that, at least in the case of a commercial or consumer transaction for goods , there are implied promises that the goods will perform as they were advertised to do. If software is goods , and if the software turns out to break computers or doesn't perform the way its documentation specifies, the licensor may be responsible to pay damages ”even when the license is silent about it.

But software isn't goods . The law in many jurisdictions hasn't quite decided what it is. Implied promises for software contracts aren't well defined.

The University of California didn't want a dispute about whether software was goods . It merely wanted protection from implied promises, and it wanted to avoid having to pay damages if a user was injured in any way by the software. It protected itself with an express warranty disclaimer and an express liability disclaimer, about which more later. That added two sentences to what otherwise could have been a one-sentence license.

The University of California also wanted to impose a few conditions that would be required of every licensee. (Ignore for a moment the particulars of those conditions.) How can a unilateral contract impose conditions on licensees if all the promises are made by the licensor? The answer is that, under the law, a condition is not a promise . In the case of a unilateral contract like the BSD, the conditions must be satisfied by the licensee or it relieves the licensor of his promise to let you have the software.

The BSD license accomplished much more than simply giving a particular piece of software away. By encouraging the contribution of software into a public commons of software available to anyone , it created a growing benefit to the University of California and everyone else. As the theory goes, more and more people will contribute BSD-licensed software to the commons in response to, and as consideration for, earlier contributions. The huge amount of software now available under the BSD license (and similar academic licenses) has proven that this theory works in real life.

The BSD license even allows software to be taken from that public commons and used in proprietary applications. There is no obligation for the licensee to return anything to the commons. But despite the absence of such an obligation, the BSD "gift of freedom" is being repaid over and over by companies and individuals who see more value to them in giving software away under an academic license than in keeping it private.

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Open Source Licensing. Software Freedom and Intellectual Property Law
Open Source Licensing: Software Freedom and Intellectual Property Law
ISBN: 0131487876
EAN: 2147483647
Year: 2004
Pages: 166

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