Conditions under the BSD

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The BSD license includes the following proviso that must be met for source code distributions:

Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer. ( BSD license.)

The phrase above copyright notice is somewhat misleading. Presumably the BSD license really refers to the actual copyright notice that is displayed on the software being distributed rather than the copyright notice shown above in the license, for otherwise this would be a meaningless requirement.

The phrase this list of conditions includes three items: the requirement for source code distributions quoted above and two other conditions. The second condition is:

Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution. ( BSD license.)

The phrase binary form is assumed to mean something broader than what that term meant in 1989, what we now more commonly refer to as the executable form of the software. BSD-licensed software may be distributed in binary (executable) form alone, without source code.

I assume that the requirement to include the above copyright notice in binary distributions means the original copyright notice valid for the work itself rather than the copyright notice shown in the license. And since there is no actual requirement to provide documentation and/or other materials with the distribution, it isn't clear that the above copyright notice will ever actually be seen by users.

The third BSD license condition relates to the name of the licensor , either University of California, Berkeley, for the original Berkeley Software Distribution or, since the BSD license is a template, whatever the BSD licensor's name is:

Neither the name of the <ORGANIZATION> nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission. ( BSD license.)

The name of a company or individual is not a copyright or patent, but it is nevertheless an important property interest that is protected by law in many countries . It can ”and from the perspective of the open source community of contributors should ”be protected from association with other people's work or products. (Remember item 5 of the Open Source Definition in Chapter 1, although it is not included as a mandatory feature of open source licenses in the Open Source Principles.)

The BSD license explicitly prevents the name of the licensor or contributors from being used to endorse or promote products . This restriction clearly covers marketing activities. It probably doesn't cover otherwise naming the original licensor and contributors, as long as those names aren't used for product endorsement or promotion.

A more comprehensive requirement concerning advertising was present in the original BSD license:

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." (Previous version of BSD license.)

This condition was removed from the BSD license in 1999 after extensive public criticism of that requirement. Many people complained that it is one thing to prohibit the use of the licensor's and contributors' names for publicity purposes (i.e., the third condition already discussed), but it is quite another to require that a specific advertisement for the University be included in all advertising materials for the software or its derivative works. The concern was not merely for the University of California's one- sentence advertisement, but that other licensors using the BSD template could demand even more grandiloquent advertisements that create unacceptable burdens for subsequent creators of derivative works. Such advertising demands are no longer acceptable for open source licenses because they interfere with the freedom to create derivative works.

There are other forms of reputation interests of this type, such as property interests in trademarks, which are not mentioned in the BSD license. The BSD license refers only to names and doesn't explicitly say that a licensor's trademarks can't be used to endorse products. Even in the absence of a provision relating to trademarks, however, the law of unfair competition, at least in the United States, prevents a licensee from using a licensor's trademark on different but similar goods without the licensor's permission.

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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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