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non-enforcability of the BSD advertising clause

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.




(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."


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.
branden@debian.org                 |       Chemistry is really physics.
http://people.debian.org/~branden/ |       Physics is really math.

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