Re: non-enforcability of the BSD advertising clause
> In other words, under the logic of the BSD advertising clause, the
> Regents of University of California could also compel the inclusion
> of certain language in advertising flyers distributed by bookstores,
> the Book-of-the-Month Club, and so forth, since the University of
> California also has a publishing imprint, through which various
> academics publish books in which all exclusive rights are reserved.
Bookstores do not need a copyright license to sell legally acquired
books. By the time they get the book, it has already been copied and
distributed -- they are protected in this case by the first sale
doctrine. This is exactly the same issue that comes up every time
someone talks about GPL enforcement. By granting you a license to copy
and distribute their code, Berkeley has granted a waiver of their
exclusive rights under copyright law -- in particular, the right to
reproduce, distribute, and prepare derivative works -- rights that a
bookseller does not need. In exchange for granting that right, they are
permitted to ask for something in return, and that will be enforceable
(via a copyright infringement action) except perhaps in cases where
such a restriction is contrary to public policy (as, for example, the
censorship clauses covering McAfee anti-virus software have been held
to be unenforceable in New York). Citing first amendment cases in this
context is generally not going to be helpful.
> One might be able to *contract* away one's right not to say "<Copyright
> holder> is the coolest person I have ever met", but copyright law cannot
> compel you to say it.
No, but copyright law does say that you have no right to "copy and
distribute" in the absence of a (potentially conditional) grant of
permission.
This issue is complicated by the fact that the so-called "BSD license"
is just a copyright notice and was really never intended to be a license
at all. Berkeley's Computer Science Research Group distributed the
Berkeley Software Distributions only to persons who had returned to them
(in duplicate) actual signed license agreements plus a distrtibution
fee. The actual license agreement (as of 4.4BSD-Lite in 1994) was two
dense pages of text and definately a contract.
Take care,
Greg Pomerantz
(this is not legal advice)
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