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From "Lawrence Rosen" <lro...@rosenlaw.com>
Subject RE: New versions of CC licenses
Date Sun, 08 Dec 2013 02:57:12 GMT
Roy Fielding wrote:
> Regardless, the Apache License explicitly allows sublicensing.
> The BSD licenses implicitly permit it as well.  The CC-BY license
> explicitly forbids sublicensing. I don't know why, but it is hard
> to argue that it wasn't intentional.

There is no such legal doctrine as an "implicit" license to sublicense. I
know that lots of people believe in it, but that doesn't make it happen.

Sublicensing isn't required for public FOSS projects, since the license is
direct from the licensor to each person on earth. The legal advantage of
this is that there are no issues of privity of contract to argue about.

/Larry



-----Original Message-----
From: Roy T. Fielding [mailto:fielding@gbiv.com] 
Sent: Saturday, December 07, 2013 1:18 PM
To: legal-discuss@apache.org
Subject: Re: New versions of CC licenses

On Dec 7, 2013, at 9:25 AM, Richard Fontana wrote:
> 
> This would then imply that the 4-clause BSD (with the advertising
> clause) should not be in Category A, since it is widely held (by most 
> of those who claim to care about the issue) that the advertising 
> clause is incompatible with the GPL. I have even heard of downstream 
> commercial entities that have voiced concerns over the use of 
> advertising clauses. But both Roy Fielding and JimJag have said that 
> all versions of the BSD license, including those with the advertising 
> clause, are supposed to be in Category A. I have no view on whether 
> that is correct or not, just pointing out what seems like an 
> inconsistency to me.

I think that is because you read the terms literally, whereas we read them
with experience of historical (and demonstrated) intent and precedence.

In every case we have considered and discussed with the copyright owners,
their advertising clause has been satisfied by the NOTICE file.
That is, in fact, why we created the NOTICE file.  Apache httpd was
originally under the 4-clause BSD.

It is important to understand that the exact wording of the BSD license can
be interpreted with respect to the intent of the original drafters of that
license and the intent of the open source developers that chose it.  In all
cases we have seen, that intent is to ensure that their creative work is
correctly attributed where such attributions are customary.  The fact that
the wording suggests a much broader attribution is an accident of history.
That accident is commonly understood by open source projects and admitted by
UCB.

So, what we do is distribute such software under the Apache License with the
required advertising in NOTICE, based on what we know of the BSD license
intent.  If any such copyright owner chooses to object to that
redistribution, we will address their objections at that time.  We do not
expect anyone to do so.

Regardless, the Apache License explicitly allows sublicensing.
The BSD licenses implicitly permit it as well.  The CC-BY license explicitly
forbids sublicensing. I don't know why, but it is hard to argue that it
wasn't intentional.

....Roy


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