[Date Prev][Date Next] [Thread Prev][Thread Next] [Date Index] [Thread Index]

Re: PHP non-free or wrongly named?

MJ Ray wrote:
Linguistically, this seems clear to me. Showing in context:

Redistribution and use in source and binary forms, with or without
modification, is permitted provided that the following conditions
are met:
[...] 4. Products derived from this software may not be called "PHP", nor
     may "PHP" appear in their name, without prior written permission
     from group@php.net.  You may indicate that your software works in
     conjunction with PHP by saying "Foo for PHP" instead of calling
     it "PHP Foo" or "phpfoo"
Now, I hope nearly everyone defines the relevant sense of "may"
as "have permission" or similar. So, it's permitted provided
that {we don't have permission for some acts without permission
from group@}. The {}d bit is probably always true unless someone
else gives us permission (huh?).

If it's not intended as a statement (and I hope it is) then I think
it's a case of Lawyer error: reboot Lawyer.

Having just reread your post again, I think I realise what you are saying. Because they wrote the 'condition' as "Products derived from this software may not be called "PHP", nor may "PHP" appear in their name, without prior written permission from group@php.net." instead of "Either a)The name of the product does not contain 'PHP' OR b) the name of the product contains 'PHP' AND the licensee has prior written permission from group@php.net", the condition is always self-evidently true.

If this is the case, do you not think that your interpretation goes against both the obvious intended meaning of the condition, and the fact that the same wording convention is used in the other conditions of this license? Courts usually favour what the licensor meant-it-to-mean (when this is obvious to a reasonable person) rather than what they actually ended up saying.

Under this interpretation, all clauses of the BSD license could be treated as statements of self-evident facts, thus making them all true, and the entire license a blanket permission grant. This is not a common or correct interpretation, however.

If this is not the case, I apologise for wasting your time.

On the subject of statement vs condition, if the first sentence of four were a statement, surely it should be a statement of trademark law as it actually is*? That (when interpreted in this way) it is incorrect on at least two counts** suggests that it should be interpreted as a condition, not a statement, much like the GPL's "You may not copy, modify, sublicense, or distribute the Program except as expressly provided under this License.", which is incorrect if interpreted as a statement of fact rather than a condition: in most jurisdictions, you have 'fair use' rights in addition to the GPL.

* and thus be something like 'products (whether derived from this software or not) may not misrepresent themselves as being the product 'PHP' when this is not the case'.

** trademark lay is not limited to only derived works, and trademark law cannot prevent the truthful use of a trademark (for instance, 'Debian's modified version of PHP' would not infringe trademark law, despite 'PHP' being in the name).

Lewis Jardine

Reply to: