On Thu, May 08, 2003 at 09:40:46PM -0400, Anthony DeRobertis wrote: > On Thu, 2003-05-08 at 20:17, Thomas Bushnell, BSG wrote: > > > They are also not enforceable in the US. > > Can you please provide a citation for this? I've never been able to come > up with one. I found one case that *might* be controlling. The issue is difficult because jurisprudence regarding statements in advertising seem to concerned far more with various *bans* on types of statements in advertising, and how these infringe on commercial speakers' First Amendment rights, rather than how *compelled* statements in advertising might infringe commercial speakers' First Amendment rights. ZAUDERER v. OFFICE OF DISCIPLINARY COUNSEL, 471 U.S. 626 (1985) "Held: [...] (a) [...] Commercial speech that is not false or deceptive and does not concern unlawful activities may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest." http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=471&invol=626 Because copyrights are constructed and granted by the government, it may be the case that one cannot rely on copyright law alone to compel people to place certain text in advertisements. The BSD license is quite unilateral its grant of permissions -- or "explicit waiver of exclusive rights", if you will -- then if the Regents of the University of California were allowed to compel statements to be made in advertising "mentioning use" of its copyrighted works, then it might also be the case that copyright holders could compel statements to be made in advertising "mentioning use" of their copyrighted works even when *no* exclusive rights under copyright law were waived. 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. And, of course, this same reasoning would apply to any other copyright holder and any other type of work. 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. Now that I think about it, this ruling seems a pretty strong prohibition against the BSD advertising clause. However, I'm not a copyright lawyer, so my analysis could be deeply flawed in some way that is not obvious to me, or _Zauderer v. Office of Disciplinary Counsel_ might have been overturned. If a real lawyer or law student lurking on this list would like to speak up, please do. Otherwise I'm likely to cite _Zauderer v. Office of Disciplinary Counsel_ for this purpose in the future. -- G. Branden Robinson | Psychology is really biology. Debian GNU/Linux | Biology is really chemistry. firstname.lastname@example.org | Chemistry is really physics. http://people.debian.org/~branden/ | Physics is really math.
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