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Re: Copyright question (BSD with advertisement clause)

On Wed, Feb 06, 2008 at 10:27:55PM -0800, Russ Allbery wrote:
> Ben Finney <bignose+hates-spam@benfinney.id.au> writes:
> Hm, I could have sworn that the DFSG predated the Constitution and hence
> predated the existence of the three-clause BSD license.  UCB dropped the
> advertising clause in July of 1999 and the DFSG were adopted in July of
> 1997 according to Wikipedia.

I believe your reasoning is faulty, because it is based on incomplete
information.  There was more than one "BSD" license in use well before
USB's Office of Technology Licensing withdrew the 4-clause version.

Back in December 1997, Jordan Hubbard (one of those fringe figures in the
BSD scene ;-) ) said in comp.unix.bsd.freebsd.misc[1]:

: > Redistribution is not permitted, but if you do you must meet the
: > following
: > conditions:
: > 1. Redistributions of source code must retain the above copyright
: >    notice, this list of conditions and the following disclaimer.
: > 2. 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.
: Correct and, oddly enough, also the exact text of the "new FreeBSD
: license", one we've agreed upon for new code not done by UCB.  It
: contains only the first 2 of the original 4 clauses since we think that
: the stipulations for documentation are simply silly - I've been using a
: 2-clause version in all my own code for quite some time now.

I haven't taken the trouble to browse ancient FreeBSD CVS repositories to
see when the FreeBSD committers started actually applying their 2-clause
variant, but I hope you'll concede that it's much more likely than you
thought it was, given that Hubbard's language ("quite some time now") and
this evidence that BSD licenses without the advertising clause were in use
a year and a half before you thought they were.

> Hence, I assumed the BSD license as referred to in the DFSG must,
> regardless of what the web site currently links to, actually refer to the
> 4-clause license since that's the only thing that existed at the time.
> Am I missing something?

Yes; I think you are insufficiently cognizant of the proliferation history
of BSD license variants.

The BSD advertising clause was considered obnoxious by some hackers well
before the UCB OTL retroactively cancelled it; your analysis presumes that
people only did anything about it only after the University of California
showed the way.  I think this inverts cause and effect, and I doubt that
the OTL would have bothered taking such an action without pressure from the

(I have heard rumors that the OTL was in large part persuaded to drop the
advertising clause because of threatened counter-litigation by a party that
was violating it, who made an apparently strong argument that the clause
was unenforceable under U.S. law.  Unfortunately, despite poking around for
this over the years and talking to some luminaries who might have been
aware of it--though not William Hoskins himself--I have been unable to
substantiate it.  If this turns out to be true, Debian should not be
recommending as a best practice licensing provisions which are legally void
significant jurisdictions like the United States.)

(Why isn't this in -legal?  Followups set.)

[1] Message-ID: <349C8CB4.794BDF32@FreeBSD.org>#1/1

G. Branden Robinson                |       The Bible is probably the most
Debian GNU/Linux                   |       genocidal book ever written.
branden@debian.org                 |       -- Noam Chomsky
http://people.debian.org/~branden/ |

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