BSD family of licenses and consumer rights

[6502]

For OP and OP's lawers, maybe to Portguese, with "assured to be legally 100% equivalent with original English one by US and Brazilian highest courts".

I see OP is writing in English here and writes very long posts. It seems he has no need to translate 4 sentences of BSD license in Portuguese. His problem is other and this topic needs lock.

 

[OpenFreeNet]

The confusion is due to how copyright law and consumer protection law address different legal interests.

Ok, enlighten us then...

Copyright law shall define the permissions and conditions governing the use of copyrighted works.

Ok, and SONY is respecting it...

Consumer protection law shall evaluate whether representations accompanying products are deceptive or unfair to consumers.

Ok, and this is the subject of SONY EULA...

The same BSD license may be analyzed under copyright law for the legal permissions,

Ok.

and, if reproduced/retained as part of a commercial transaction, under consumer protection law for the conveying representations.

Ok. SONY hasn't deprived theirs consumers of any rights regarding the FreeBSD code (i.e. they can still use it), and SONY consumers have no rights on SONY patches and SONY derivative work.

After all these posts, it is unclear which part of the BSD license oblige SONY to release the source code of its patches, and with which license. If it is not clear now, it will not clear forever, probably.

 

[OpenFreeNet]

Not many stipulate where you're supposed to get the software itself from at all. [...] The GPL is one of the notable exceptions that put an obligation on the entity that provides you with binaries. It needs to be extremely explicit about those terms though, because in no jurisdiction are they implied and they are very VERY much the exception to the rule.

Obviously the GPL is explicit about how sharing the source code of modifications, because otherwise licensees can use modified GPL code in a binary-only product, and this would be a loophole. Permissive licensees does not need this, because you share the source code only if you want.

 

[T-Aoki]

I see OP is writing in English here and writes very long posts. It seems he has no need to translate 4 sentences of BSD license in Portuguese. His problem is other and this topic needs lock.

I suspect OP's lawers completely mis-understanding BSD license. So 100% assured Portguese translation may help here.

 

[6502]

"lawers"?

 

[bvdw78]

Obviously the GPL is explicit about how sharing the source code of modifications, because otherwise licensees can use modified GPL code in a binary-only product, and this would be a loophole. Permissive licensees does not need this, because you share the source code only if you want.

That's the point. The GPL is trying to arrange for something that is way out of the ballpark of reasonable expectation in the legal sense around software licensing. That's why it needs so much text for the copyleft idea.

 

[Krush206]

Because this shall violate the rules of this forum, bvdw78. I had a post on a petition deleted. And the petition is unrelated to software licensing.

Nevertheless, the petition may still see merits on software licensing. The petition is requesting to issue an interpretive rule regarding consumer freedom of choice: the destructive impact of deceptive information on market fairness and competition.

I've yawned countless times reading the responses in here. This is tiresome.

 

[OpenFreeNet]

A positive takeaway of this insane thread, can be this: there is place for a third type of OSS license, that I call ConsumerOSS. If I release source code under ConsumerOSS, a company can freely use it in a product P, but it is obliged to give source code to customers P (and only them), and their customers have the right to modify the source code of P (but only them). So ConsumerOSS is between a permissive license and copyleft one. The difference respect a copyleft is that the license of a derived product P can be proprietary. The difference respect a permissive is that the license of P cannot deny the access of source code to their customers. So it is not viral like copyleft, but not completely free like permissive.

 

[bvdw78]

So Krush206 let's say you get your way, what will be the result in practice? And also, what's the expected timeline on the resolution of a petition like this?

 

[sidetone]

This is like a common tool. Let's say a hammer, it's basic. The design is basically in public domain, use or manufacture the hammer with sense, at your own responsibility. For instance, the caveman who invented a flint tool during the stone age doesn't give you a warranty, the BSD licenses says, use it as you want, but you're responsible for its use, as the license is handing the source code to you to do as you wish with it.

More things in public domain are more recent, and many of these things are more advanced than a hammer or stone tools. BSD licencing is an alternative and often quicker route to free use, where an author keeps the source code free, and waives responsibility in order to make it possible for it to be free. Public domain is due to expiration, or alternatively is more immediately given by the copyright holder. The requirements of BSD licencing are very basic, to preserve the source code for free use. Someone could public domain their own authored source code, but then, free access to alternatives is not as protected as with under BSD licenses. Very little is asked of permissive licensing.

The people who put the software under permissive licenses are giving you software to use, and the license says, use it at your own responsibility. Since they are giving something for free, it's not affordable for them to give you a warranty. If you want the warranty, you the user make sure it works correctly to your specifications.

What about MIT licenses, it uses similar clauses as BSD licencing. Only BSD licencing asks for very little more, for terms of preserving the code for free use, when used in a paid for product or otherwise more restricted product.

BSD licenses are fair, and give to people rather than take away. The only unfair part of BSD licenses is that it allows restrictive licenses to use them, but the original BSD licensed software is always there, as long as it has been preserved. If something is beneficial to you, and you don't like the BSD privileges, then, don't use it. You can't expect a warranty on something that is free.

This proposal isn't going to fly anywhere. Let's say, you make progress on banning BSD licenses, it will only take effect in the jurisdiction of within Brazil. That's not happening in Brazil to start with, bc Brazil has a large open source community. Aside from this proposal not making sense, too many companies back open source of BSD and MIT licensing, many more use those licensed products in their proprietary code. It's not happening in the US, Europe, Canada, Japan and many other places.

 

[Krush206]

I, for one, wish to know the exact version which is in use, bvdw78. I contacted Sony, requesting details on the BSD-licensed software included in the product. However, I received speculative responses.

I've had better examination on the BSD license. Under copyright law, you're right to point this is only a permission. My father pointed the same, though warned this may not be the de facto interpretation.

Under consumer protection law, this is questionable. The supplier is liable for everything included in the product, including copyright licenses.

Moreover, the SFC vs. Vizio case established a new ruling on how contract law is interpreted. The judge established consumers are third-party beneficiaries of GPL-licensed software. The judge established consumers can demand active enforcement on GPL-licensed software. I guess the same principle may be applied to BSD-licensed software.

 

[6502]

...

 

[hedwards]

So Krush206 let's say you get your way, what will be the result in practice? And also, what's the expected timeline on the resolution of a petition like this?

That's what I'm trying to work out, even if by some dark magic of the underworld this does proceed to the conclusion that the OP seems to want, all that's going to do is get the software just not distributed in Brazil. There just isn't a way of this proceeding down the path that OP wants to go where it isn't either laughed out of court or resulting in a bunch of stuff not being available in Brazil other than an extremely long shot one where somehow the courts find a way of threading the needle by issuing a more limited ruling that isn't quite enough to get companies to pull out. And that last one is an virtual impossibility given how fundamentally at odds the two sides are.

 

[OpenFreeNet]

The judge established consumers are third-party beneficiaries of GPL-licensed software. The judge established consumers can demand active enforcement on GPL-licensed software.

Very good. This is in the spirit of GPL, because it is how Free Software Foundation intended it, but they cannot write in this way, because it is based on copyright laws, and only copyright holders can sue. But this for a limitation of the copyright law, not because this was the real intention of the FSF.

I guess the same principle may be applied to BSD-licensed software.

Probably no, because this is not in the spirit of BSD, and it is not how copyright holders intended it.

 

[JohnK]

This thread is really depressing. Not only does it highlight single-track thinking, unyielding, undefined objectives, etc. but it also makes me (can only speak for me) not want to share anything anymore.

*post's a really cool thing: "Use it however you want."*
...5 months later...
"Awesome thing! Now, that you've given it to me and I own it, you are liable to do <X> or I'm going to sue in my countries high court!"

"I didn't give you anything (that's mine, I wrote it). How were you given the thing?"

"I downloaded it off the internet or purchased 'another thing' with 'your thing' in that 'other thing' and since I'm a consumer, I own that 'other thing' and therefore your 'thing' too."

"Wait! So you got 'another thing' with my 'thing' in it and now you're suing the 'other thing' and I need to do what? And how did you getting the 'other thing' allow you to take ownership over my 'thing'?"

OP (Krush206, I believe), you should look up the definition of "intended" and "incidental" beneficiaries (I posted a "primer" along these lines already which basically lays out that the BSD lic does not classify or define anything so basically it does not contain "enforceable rights" for third-parties--which typically have to be specified/defined).

Depressing!!

 

[ralphbsz]

Software licensing is a relatively young legal discipline ...

Hmm, I remember talking in the cafeteria of my work about the SCO versus IBM, BSD and everyone else lawsuit 25 years ago. The nice thing about the cafeteria of my work was that most of the year, we can sit outdoors to eat. Back then, software licensing law was already a well established and understood discipline. To claiming that it is "young" is nonsense.

Rather, the question is whether the representations contained in the license, once voluntarily adopted and distributed with a consumer product, acquire legal significance under other bodies of law.

Law does not exist in a vacuum. Law exists for a purpose. Imagine you were right, and all non-GPL open source software had the viral "must release my modification to the source code if I use it in a shipping product" that you so desire. What would happen? Sony would stop selling its product in Brasil. As would lots of other companies. Or Sony would stop using BSD, as would lots of other companies.

This is not what the Brazilian legislators intended. It is also not beneficial to anyone. That alone is enough for you to ultimate lose your case: if the letter of the law, when (mis-) applied, via applying the law in an area where it was not intended to be applied, gives undesirable results, then the law is invalidated, usually by a high court (or constitutional court). If you have hundred of thousands of $ (or a few million Reals), you can fight this fight all the way to the Brazilian Supreme Court, and lose there. There is a lot more fun things you can do with your money.

Why do you not share the full paper trail of your crusade here?

While I completely agree with your observation, and would love to see it all posted in public, let me give you a word of warning: Much of it is in Portuguese. And machine translation of legal documents across languages is very unreliable. In particular since much of the writing will rely on unspoken assumptions, and on laws and precedent-setting court decisions, which also would need to be translated and understood. I speak Portuguese reasonable well (fluently for things like grocery shopping and restaurants) and am a Brazilian citizen, but my first court case in Brazil was very stressful, because I needed to re-learn all the legal language and way of thinking in a different language and different legal system.

So don't put too much hope into actually understanding the documents that are in Portuguese.

Because this shall violate the rules of this forum, bvdw78. I had a post on a petition deleted.

You don't have to post them here on this forum. It's trivial to find a free web hosting service, and post them there. You can also just upload them to a random storage service (I like Google Drive) and post links to there. If you wanted to share the documents, it would be easy.

I've yawned countless times reading the responses in here. This is tiresome.

I agree, but from the opposite side: You quixotic mission is tiresome and misguided. But it's a free country, do as you wish.

 

[T-Aoki]

Just my thoughts. (I'm not a lawer.)
When consumer rights legally supercedes licenses exhibited by copyright holders (BSD, MIT, GPL, proprietary, ...), it should be a part of Product Liability. Not blindly.
And at least in Japan, PL law is NOT applicable for softwares alone.
In Japanese, but official article (Q&A by Consumer Affairs Agency) here.
Another one by Consumer Affairs Agency in Japan, in English here. Search "Software" there.
Not sure about other countries.

 

[sidetone]

What is the point? Is it lack of warranty or is it binary thinking that only one entity can own a piece of code?

If you want a warranty, you're welcome to sublicense it, thus giving it your own warranty. MPL2.0 can sublicense BSD code. GPL can, Sony can, Apple can, I can, anyone can, a company can, your country can.

It's like water, a piece of PVC pipe from a hardware store, sand, a hammer, a flint tool. Anyone has rights to use it: only when those products are in combination with other parts, does that combination belong to a patent holder in comparison to a copyright holder for a combination of software. "Hello World" would be a simple example of a public domain phrase.

If you go this route, you're going to have to sue all of public domain, bc a BSD license is close, except that it asks for very minimal requirements. Public domain is backed by the US and other governments. After so many years, copyright work goes into public domain. If you go this route, and in a Bizarre alternative universe should this succeed, you're ruining it for all of us or for your country.

 

[Krush206]

Hmm, I remember talking in the cafeteria of my work about the SCO versus IBM, BSD and everyone else lawsuit 25 years ago. The nice thing about the cafeteria of my work was that most of the year, we can sit outdoors to eat. Back then, software licensing law was already a well established and understood discipline. To claiming that it is "young" is nonsense.

Are you the graduated lawyer? This isn't what my father's told me.

Para o mundo do direito é, porque antigamente não existia isso.

Então os entendimentos jurídicos só começam a consolidar depois de muitos casos.

No direito, nem tudo é claro em situações novas. Não funciona assim. Muitas situações novas surgem e só tempos depois quando os conflitos começam a aparecer é que o direito, os juízes, os tribunais, os doutrinadores, começam a pensar aquela situação à luz do direito para poder dar uma solução ao conflito surgido. Não tem solução simples.

Então os entendimentos jurídicos só começam a consolidar depois de muitos casos.

Notably, in the context of consumer protection, this is new. The FTC policy statements on unfairness and deception were drafted in the 80s.

Como (1) o direito do consumidor é de ordem pública, (2) havendo relação de consumo na compra de um produto qualquer (3) com um software de licença livre, eu pensei que poderia cogitar do direito do consumidor atrair essa questão da licença também. Isso foi uma criação minha, pensando juridicamente.

My father's told me this is a construction game. He resembled this as viewing a garden.

 

[OpenFreeNet]

If you go this route, you're going to have to sue all of public domain, bc a BSD license is close, except that it asks for very minimal requirements. Public domain is backed by the US and other governments. After so many years, copyright work goes into public domain. If you go this route, and in a Bizarre alternative universe should this succeed, you're ruining it for all of us or for your country.

To be honest, if I understood correctly Krush206, what he is asking is not that BSD license became "viral", but that a customer of SONY must have access to the source code with the patches of SONY, so they can customize/fix/patch them. But this right is only for customers that are licensee of SONY. So, it is a middle ground between GPL (the code can never become proprietary) and BSD (the code can become proprietary), because in this case the code remains open but only for customers with a valid license.

By the way: I don't think this will be the case, because the BSD says nothing about this.

 

[6502]

Are you the graduated lawyer? This isn't what my father's told me.

Are you graduated lawyer? If not, stop posting here your fantasies.

 

[Krush206]

Off-topic, again. The Policy Statement on Deception shall classify omissions under the net impression. Omission is the inverse of representation, resembling the Right to be Informed. However, any form of information omission can potentially be classified as unfair. The Policy Statement on Unfairness shall classify an act or practice as unfair if there's substantial injury not reasonably avoidable which doesn't have countervailing benefits to consumers OR competition. The omission of information shall cause substantial injury, because this shall impair a consumer's Right to Choose, and distort competition. The injury isn't reasonably avoidable without full disclosure of information. Withholding information shall not have countervailing benefits to consumers OR competition.

This is a plausible defense and interpretive rule writing. Unfairness and deception are interrelated. So are unfair methods of competition.

 

[bvdw78]

What are your expectations of companies like SONY, that they are currently not meeting?

 

[Krush206]

I'm trying to connect Brazilian consumer protection law to US consumer protection law. US consumer protection law is rather dry, though still powerful. The principles of unfairness and deception empower the FTC.

 

[hedwards]

To be honest, if I understood correctly Krush206, what he is asking is not that BSD license became "viral", but that a customer of SONY must have access to the source code with the patches of SONY, so they can customize/fix/patch them. But this right is only for customers that are licensee of SONY. So, it is a middle ground between GPL (the code can never become proprietary) and BSD (the code can become proprietary), because in this case the code remains open but only for customers with a valid license.

By the way: I don't think this will be the case, because the BSD says nothing about this.

That's essentially the same thing here though. If they've got to also release the source they built on top of the BSD licensed code, that pretty much converts it from being a permissive license to being a copyleft license. The main difference between GPL and BSD is that GPL requires that if you integrate GPL code into your binaries that the entire binary has to have source available in the same place and be GPLed.