Re: Question about the old BSD license and GPL (gtkipmsg)
This is not legal advice. No lawyer-client relationship is established. etc.
etc.
From: tb@becket.net (Thomas Bushnell, BSG)
To: "none" <chloehoffman@hotmail.com>
CC: <debian-legal@lists.debian.org>
Subject: Re: Question about the old BSD license and GPL (gtkipmsg)
Date: 20 Jun 2001 20:04:21 -0700
"none" <chloehoffman@hotmail.com> writes:
> I am not sure why the BSD advertising clause is unenforceable in the
U.S. To
> me it is a contract clause in the BSD like all other clauses
> therein.
It's obviously not a contract, for the usual reasons. It's a public
license, not a contract.
By this distinction are you suggesting that all clauses that cause the
licensee to forego rights are unenforceable e.g. limitation of liability? I
would not think too many open source developers would be happy with that
scenario. Aren't they all relying on the effectiveness of the limitation of
liability clause? In any event, the BSD advertising clause seems to me to be
a condition of the unilateral distribution, modification, etc. license and
so no compliance with that condition suggest to me no authority under that
distribution, modification, etc. license (see
http://www.xfree86.org/3.3.6/COPYRIGHT2.html#5).
> If the BSD license is enforceable then all of its clauses are
> enforceable (subject to unconscionability or against public
> policy). If it were otherwise, then the limitation of liability (for
> the benefit of the developer) is also ineffective.
Apparently there are first amendment reasons why that particular
clause in the license is not generally thought to be enforceable in
the US, though I don't know the details of the argument.
I fail to see the "first amendment" reasons. Violation of the First
Amendment to the U.S. Constitution typically requires state action. To me
this is a contract matter between private parties - I don't see state
action.
The point is moot, however, because it is universally agreed to be
enforceable in the UK, and that's enough to render it incompatible
with the GPL.
Never stated otherwise.
Thanx for your comments.
Thomas
_________________________________________________________________
Get your FREE download of MSN Explorer at http://explorer.msn.com
Reply to: