BSD family of licenses and consumer rights

[Krush206]

The BSD family of licenses are unusually compatible with consumer rights. The licenses cope well with the right to be informed. If a consumer owns a product which includes software under a BSD license, they're legally eligible to obtain (or, better saying, use) the sources. When a company states that the product includes software under a BSD license, it is making a representation. The core feature of these licenses is the freedom to use, modify, and redistribute the source code. By failing to provide a way to use the source code, the company is making a material omission. It is omitting the crucial fact that the advertised open nature of the software is practically inaccessible. A reasonable consumer, seeing that a product uses open-source software, would be led to believe they can benefit from the openness of the software (e.g., for security audits, community repairs, modifications). Denying use misleads the consumer about this essential characteristic.

1) redistribution is illusory if the sources weren't disclosed in first place; 2) use implies access. Use is illusory if access is illusory. Both cases are material omissions. The FTC Act prohibits deceptive or unfair practices or acts in or affecting commerce. All it takes is a company engage in deceitful behavior, such as claiming sources may not be disclosed. This is a false claim, and flies in the face of the right to be informed.

Note I'm not saying the BSD licenses replace GNU GPL. GNU GPL better kicks in to make modifications applicable under the same license. This is what copyleft is about.

 

[Beastie7]

... imposing little to no restrictions to redistribution is the sole benefit of permissive licensing. What's your point here? The BSD license keeps things transparent between the consumer and distributor. There is no deception involved here. The only thing that is required are copyright notices, etc.

You wittingly forget about the freedom of developer choice also. If I take permissively licensed code, and slap the GPL on it; I'm essentially striping the rights of future (and past) contributors to do as they please with their modifications. This viral/forced sharing is Grade A anti-social behavior. It's wrong.

If a consumer owns a product which includes software under a BSD license, they're legally eligible to obtain (or, better saying, use) the sources.

Only if that portion of derived code is release under the same license by the distributor. The BSD license doesn't require source code to be distributed at all. Again, they have to provide copyright notices and license text in binary distributions. This is how we know Orbis OS (PS4/PS5) is based on FreeBSD.

By failing to provide a way to use the source code, the company is making a material omission

This is not required under permissive licensing.

Users are entitled to nothing with open source software.

 

[Krush206]

... imposing little to no restrictions to redistribution is the sole benefit of permissive licensing.

That doesn't mean the supplier isn't liable for the license used in the software. Software is licensed, not bought. Whichever terms and clauses present in the license are responsibility of the supplier. If the license grant says one can "use in source form", this presupposes access. If access is illusory, use is illusory. And this does fall under deceptive acts or practices, under the FTC Act.

Anyhow, I'm in Brazil. In Brazil, we've strong consumer protection laws. The weakest part in the consumption relationship is the consumer. This means contract clauses are read in favor to the consumer.

 

[Beastie7]

There is no legal attribution behind permissive licensing outside of copyright notices (in case of BSD licensing)... that's the entire point. Suppliers are not liable because permissive licensing carries little to no restrictions (via source or binary). The supplier can do whatever they want with it. The FTC Act has nothing to do with open source licensing, and because you're in Brazil; it's entirely irrelevant. Commerce Trade and distribution of permissively licensed open source software are two different things.

Apple borrows tons of code from FreeBSD, but they are not legally obligated to provide source distributions of their modifications (via Darwin); because the license doesn't uphold that condition.

 

[rbranco]

Note I'm not saying the BSD licenses replace GNU GPL. GNU GPL better kicks in to make modifications applicable under the same license. This is what copyleft is about.

Let Linus Torvalds himself dispel this myth for you:

Linus Torvalds (@torvalds@social.kernel.org)

@trashheap The “argument” by the SFC is complete garbage, and always has been. There has been no question about the license, and I have made it very clear over the years. And the SFC knows that.So ...

social.kernel.org

 

[T-Aoki]

The BSD family of licenses are unusually compatible with consumer rights. The licenses cope well with the right to be informed. If a consumer owns a product which includes software under a BSD license, they're legally eligible to obtain (or, better saying, use) the sources. When a company states that the product includes software under a BSD license, it is making a representation. The core feature of these licenses is the freedom to use, modify, and redistribute the source code. By failing to provide a way to use the source code, the company is making a material omission. It is omitting the crucial fact that the advertised open nature of the software is practically inaccessible. A reasonable consumer, seeing that a product uses open-source software, would be led to believe they can benefit from the openness of the software (e.g., for security audits, community repairs, modifications). Denying use misleads the consumer about this essential characteristic.

1) redistribution is illusory if the sources weren't disclosed in first place; 2) use implies access. Use is illusory if access is illusory. Both cases are material omissions. The FTC Act prohibits deceptive or unfair practices or acts in or affecting commerce. All it takes is a company engage in deceitful behavior, such as claiming sources may not be disclosed. This is a false claim, and flies in the face of the right to be informed.

Note I'm not saying the BSD licenses replace GNU GPL. GNU GPL better kicks in to make modifications applicable under the same license. This is what copyleft is about.

I'm not a authorized lawer, so not reading your statements character-by-character, complete basis. But I have an impression that you're mis-understanding BSD-based licenses with GPL.

And don't forget not all consumers want to have / read source codes.
GPL is for programmers who want any derivative codes from theirs to be GPL'ed and force disclosing modified codes even if the codes includes NDA'ed info (i.e., how to control not-yet-sold engineering sample hardwares) in the code, which is illegal.

And don't forget BSD stands for Berkeley Software Distribution, which belongs to Univercity of California, Berkeley, which means "academic" at least at the era. If I understand correctly (English is NOT my mother tongue), they needed a license on distributing their codes which protects themselves from forced updates of already-out-of-interests codes and so on.

 

[Krush206]

Apple borrows tons of code from FreeBSD, but they are not legally obligated to provide source distributions of their modifications (via Darwin); because the license doesn't uphold that condition.

What part of "I'm not saying the BSD licenses replace GNU GPL" have you not understood? BSD licenses aren't copyleft. However, licensees are legally enabled to obtain source code at request. The license explicitly says "use in source form" is permitted. That doesn't mean the modifications must be delivered, unless the copyright holder authorizes so.

The supplier can do whatever they want with it.

They do can modify, but not withhold code licensed under the BSD license. And I'm not going to waste effort on explaining any of that. I already consulted a lawyer, and realized the "use in source form" statement works like an authorization or enabler.

 

[Beastie7]

What part of "I'm not saying the BSD licenses replace GNU GPL" have you not understood? BSD licenses aren't copyleft. However, licensees are legally enabled to obtain source code at request. The license explicitly says "use in source form" is permitted. That doesn't mean the modifications must be delivered, unless the copyright holder authorizes so.

They do can modify, but not withhold code licensed under the BSD license. And I'm not going to waste effort on explaining any of that. I already consulted a lawyer, and realized the "use in source form" statement works like an authorization or enabler.

What part of “Only if that portion of derived code is release under the same license by the distributor.” do you not understand?

Permissive licensing involves no restrictions on derivative code. No liability, nothing. This is not hard to understand. The BSD license was specifically designed to avoid legal ramifications like this. If you’re so concerned the laws in Brazil then you shouldn’t use permissive licensing. No one cares about that.

 

[mer]

Not a lawyer either, but I've been reading different OSS licenses for a long time.

All of the current variations of the BSD license (4,3,2 clause) start out with the following statement (addressing directly post #7):

Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met: (where conditions relate to maintaining the existing copyright information in both source and binary forms)

To me, even a non lawyer, that clearly states that anyone can take BSD source code, modify it (or not), distribute their changes as long as the conditions around maintaining copyright are satisfied.

Nothing in that says (at least to me) "If you make modifications you MUST make them available to anyone that asks".
All the variants of the GPL say the exact opposite (if you modify the code you must make the modifications available).

VxWorks (commercial RTOS used in embedded systems) was originally based on FreeBSD. It had modifications. If you were developing embedded products with it (Telco switches is one area) you had access to the source code so your company could modify it as needed. Changes were never mandated to get pushed back to VxWorks or made available to the general public.

Now in my experience, if a company makes a product based on Free/Net/OpenBSD and modifies the source, they try to push it back upstream and get it merged. Why? Easier in the long run. You start with FBSD 12.2, you have patches on top of that, you want to move to 13.x. A lot easier to move your product forward if your patches have been integrated back upstream.

 

[OpenFreeNet]

To me, even a non lawyer, that clearly states that anyone can take BSD source code, modify it (or not), distribute their changes as long as the conditions around maintaining copyright are satisfied.

For me it is the opposite. I find BSD license text extremely ambiguous. MIT a little better. Apache Licens (APL) very good. For example APL states explicitely:

"You may add Your own copyright statement to Your modifications and may provide additional or different license terms and conditions for use, reproduction, or distribution of Your modifications, or for any such Derivative Works as a whole, provided Your use, reproduction, and distribution of the Work otherwise complies with the conditions stated in this License."

This is clear: if you modify the source code, you can re-license your modifications under a different license. The only requirements are that the new license comply with the minimal requirements of the APL (mainly attributions, trademarks protections, and protection from patents litigations). So, it is clearly a very permissive license.

But if I modify BSD code, and I release the derivative work in binary form, the BSD license says something like (I'm unwrapping the text): "redistribution and use in binary forms, with modification, are permitted provided that the redistribution in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other material provided with the distribution". If I interpret it "word by word", it seems to me that "this conditions" (i.e. the BSD conditions) must be applied also to the modifications of the BSD code, and not only the original BSD code, because I must inform the user that it can "redistribuite and use in binary form, with modification ..." the entire forked product, not only the original product.

I know that the world agree that BSD license is interpreted as a permissive license, and I'm fine with this, but for some reason, I cannot interpret its text in the same way. I find it "obscure".

 

[ralphbsz]

To begin with, I'm also from Brazil. But my Portuguese is not good enough to have a technical discussion.

The BSD family of licenses are unusually compatible with consumer rights.

I don't know what you mean by "unusually compatible". I don't know what "compatible" means in this sentence, since you are comparing a license with a right. It's like saying "apples are unusually compatible with elephants". I don't know what you mean by "unusually": more than the competition, or not usually? I don't know what you mean by "consumer rights". For example, you might mean the right to return a defective product for a refund, which is simply not applicable to something that you download for free. Or the consumer right to not be sold spoiled and outdated product (often a product in supermarkets), which again is not applicable here.

The licenses cope well with the right to be informed.

Informed of what? For example, in many countries, there is a right to be informed of the calorie and nutrition content of food. When entering into certain complex legal contracts (such as buying a house or taking a loan), there is a right to get a complete copy of the terms and conditions. I don't know what information and what right you mean here.

If a consumer owns a product which includes software under a BSD license, they're legally eligible to obtain (or, better saying, use) the sources.

That is incorrect. If you own a product that internally uses BSD, the manufacturer of that product is under no legal obligation to give you the source code.

When a company states that the product includes software under a BSD license, it is making a representation. The core feature of these licenses is the freedom to use, modify, and redistribute the source code.

The code feature of the BSD license is that you can use the source code for anything you want. As said above, there is no need for anyone to give you the source code to their product. Therefore, you may also be unable to use, modify or redistribute it.

By failing to provide a way to use the source code, the company is making a material omission. It is omitting the crucial fact that the advertised open nature of the software is practically inaccessible.

See above; this is saying the same thing again, just this time as a negative.

A reasonable consumer, seeing that a product uses open-source software, would be led to believe they can benefit from the openness of the software (e.g., for security audits, community repairs, modifications). Denying use misleads the consumer about this essential characteristic.

A consumer that expects to be able to access the source code just because a product uses BSD would be wrong.

1) redistribution is illusory if the sources weren't disclosed in first place; 2) use implies access. Use is illusory if access is illusory. Both cases are material omissions. The FTC Act prohibits deceptive or unfair practices or acts in or affecting commerce. All it takes is a company engage in deceitful behavior, such as claiming sources may not be disclosed. This is a false claim, and flies in the face of the right to be informed.

See above. Since BSD does not require sources to be disclosed, there is nothing that happens in this situation, and the FTC Act doesn't come into play at all.

Note I'm not saying the BSD licenses replace GNU GPL. GNU GPL better kicks in to make modifications applicable under the same license. This is what copyleft is about.

The GPL is indeed different. If you modify a piece of software that is under GPL, and you distribute a binary copy of that modified software, you are required to also distribute the source code of the modified software, to the recipients of the binary version (not necessarily to the world at large). And those recipients may not be able to re-distribute that source code to others (see the recent RedHat happenings). If you modify software under the GPL and do not distribute binary copies, you do not have to distribute the source code (under newer versions of the GPL there are also cases of the software being used, for example in cloud computing, which count as distribution).

But even more important: Say I build a product that internally runs Linux (both the kernel and the GNU-based user land tools, which is undoubtedly under the GPL). The real value of the product comes from some software I have written, which is not under the GPL, and which runs inside the product. For example, it might be a dishwasher with a particularly intelligent control system that makes your dishes cleaner, and does so faster. I can advertise that my product runs Linux. If someone demands the source code to my modifications to Linux, I am required to distribute those, if I have made any. If I have not modified Linux (or the GPL'ed part of the product), I don't have to distribute any modifications. But most importantly: I am under no obligation whatsoever to distribute my special custom software, in this example the dishwasher control system. I can change that control system as much as I want, and nobody can force me to share those modifications.

 

[Krush206]

That is incorrect. If you own a product that internally uses BSD, the manufacturer of that product is under no legal obligation to give you the source code.

That isn't how it works, mate. The product contains a license that explicitly grants rights ("use in source AND binary forms"). This is a representation made by the product itself. The company's simultaneous refusal to honor that grant is a material omission. They are omitting the fact that the rights granted on paper are a sham. This creates a misleading impression about the nature of the property the consumer owns.

Under Brazilian consumer law, this is even more robust. The "oferta" includes all the intrinsic characteristics of the product. The software and its corresponding license are fundamental components of the product's legal and technical reality. The supplier's refusal to provide the source code after the consumer discovers their right is a classic example of a post-sale breach of good faith. The supplier has a duty to cooperate and not to frustrate the consumer's legitimate use and enjoyment of their property. By withholding the code, they are actively frustrating the consumer's ability to maintain, repair, and secure their own device, which is a direct violation of the good faith principle.

 

[bvdw78]

If my product contains, let's say, FreeBSD as an OS I have to add FreeBSD's copyright notices to my product. It is however up to FreeBSD (its legal owner/proprietor/publisher entity), not me, to provide access to it as it's not my product but FreeBSD that is BSD-licensed. I just use my right to redistribute FreeBSD in binary form with my product. As a consumer you wouldn't be misled because you're more than welcome to go and get the sources BSD-licensed operating system that's inside my product, and they're available at the official FreeBSD distribution points where everyone gets them.

Whatever I run on top of FreeBSD to make my product work, is up to me: my conditions, no BSD connection whatsoever there. Same for any modifications I make *to* FreeBSD as part of my product. You can still go and get FreeBSD itself as per its license, but not (necessarily) any of my modifications I made to it in any way, shape or form. Do I get to name those modifications "FreeBSD"? No, I don't. They are separate and I'm not allowed to use the FreeBSD brand and trademarks for my code. Those modifications are my product and the BSD license does not automatically apply to them unless I explicitly do license them that way.

Now if I *do* explicitly license my product under a BSD-license, I have to provide you a reasonable form of access to the source code since that is to be expected from the license itself. You're still dealing with two separate BSD-licensed entities though: FreeBSD (the operating system), and anything I added to it "my product". All I'd be responsible for, is to provide access to the sources of "my product" and not to any FreeBSD code.

 

[6502]

That isn't how it works, mate. The product contains a license that explicitly grants rights ("use in source AND binary forms"). This is a representation made by the product itself. The company's simultaneous refusal to honor that grant is a material omission. They are omitting the fact that the rights granted on paper are a sham.

You don't understand BSD license, and copyright.

 

[T-Aoki]

Those modifications are my product and the BSD license does not automatically apply to them unless I explicitly do license them that way.

This would be the most significant difference between GPL and permissive licenses like BSD / MIT / ...

 

[OpenFreeNet]

That isn't how it works, mate. The product contains a license that explicitly grants rights ("use in source AND binary forms"). This is a representation made by the product itself. The company's simultaneous refusal to honor that grant is a material omission. They are omitting the fact that the rights granted on paper are a sham. This creates a misleading impression about the nature of the property the consumer owns.

If a vendor V uses a product B under BSD, for creating a product P sold to a customer C under a proprietary license, then V is not obliged to give access to the code of P to C. The BSD license is not transitive. BSD applies to B, not to P. BSD gives reuse rights to V, not to C. C does not inherit the rights of BSD, but they must follow the agreements of P's proprietary license. The only obligations of V are to inform C that P is based on the work of B (i.e. credit also the original authors and about the license they choose). These are the only obligations that are "transitive" in the BSD license, i.e. if the proprietary license of P allows C to reuse P, then it must oblige C to credit B also in the derived products.

Under Brazilian consumer law, this is even more robust. The "oferta" includes all the intrinsic characteristics of the product. The software and its corresponding license are fundamental components of the product's legal and technical reality. The supplier's refusal to provide the source code after the consumer discovers their right is a classic example of a post-sale breach of good faith. The supplier has a duty to cooperate and not to frustrate the consumer's legitimate use and enjoyment of their property. By withholding the code, they are actively frustrating the consumer's ability to maintain, repair, and secure their own device, which is a direct violation of the good faith principle.

These are completely different aspects. Maybe a national law can protect things like "fair right to repair", and they can consider the controlling software like something that must be accessible to the users. But these requirements are not part of the BSD.

 

[Krush206]

You don't understand BSD license, and copyright.

I do. This is analogous to buying a car or property without the key. Denying part of a product is an unlawful act.

Just as a consumer cannot use a car or property without the key, a consumer cannot exercise the rights under the BSD license without access to the source code. The supplier is denying an essential part of the product.

 

[T-Aoki]

I do. This is analogous to buying a car or property without the key. Denying part of a product is an unlawful act.

Just as a consumer cannot use a car or property without the key, a consumer cannot exercise the rights under the BSD license without access to the source code. The supplier is denying an essential part of the product.

Even if you're correct in Brazil, Brazilian (local) law cannot affect me, Japanese living in Japan.

For example, if I create some codes and license it under BSD 2 clause, then, someone in USA reused it for proprietary software and licensed in Brazil, the US-resident needs to notify where to find my code (or re-distribute, which is allowed) to the Brazilian customer when required (if licensed via Brazilian local agency, the agency should take the job for the US-resident).

If disclosing proprietary parts of the US-resident's source codes is NOT allowed under the contract between the US-resident and the Brazilian local agency, the proprietary parts of the US-resident's code SHALL not be available in Brazil. At worst, it can cause "physical war"!

Don't forget, local laws are NOT international law. Only thing local laws can with it to prohibit licensing proprietary softwares without source codes in the countly after the day the law took effect for such an international things.

 

[T-Aoki]

Note that, Japan cannot invoke war as of Article 9 of the Constitution of Japan. But most countries does NOT have such a mutual restriction to avoid war. Don't excessively expand local law to international things. It's quite dangerous without corresponding international law.

This kind of discussion would be the exception to avoid politics in this forum, but not matches for "technical forums" like here. So this should be the last post by me in this thread. (Unless discussions moves to purely technical things.)

 

[OpenFreeNet]

Just as a consumer cannot use a car or property without the key, a consumer cannot exercise the rights under the BSD license without access to the source code. The supplier is denying an essential part of the product.

The BSD license is giving rights to the "supplier" of the modified product, but not to the "consumer". The "supplier" has the rights to reuse the source code, and the obligation of giving proper credits. The "consumer" has no rights, except the fact to be informed about the original BSD work on which the final product is based.

In BSD license, the rights of the "supplier" are not transitive: i.e. they are not transferred to the "consumer". In BSD the "supplier" has all the rights and nearly no obligation.

By the way, BSD license uses ambiguous terms like "retain" and "reproduce". But they must be interpreted as a way "to notify" about the original modified work, not a way to propagate the license also to the derived binary work or to the modified source code.

 

[6502]

I do. This is analogous to buying a car or property without the key. Denying part of a product is an unlawful act.

It is not "analogous". What car key have received all users of Windows? They are millions and even billion. How they use their cars without keys?

BSD license permits redistribution of source code but it is not mandatory. You can even make proprietary software using BSD libraries or modules. No limit. This is the main difference with GPL.

 

[ralphbsz]

The product contains a license that explicitly grants rights ("use in source AND binary forms").

That license applies ONLY to things that are under the BSD copyright and license. And that is the BSD source code. Not a piece of software that happens to be shipped in the same product as BSD.

Furthermore, you are misunderstanding the text of the license. Let's get a bigger quote:

Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:

1. Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.

2. Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution.

3. Neither the name of the copyright holder nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission.

What this says is literally: If you redistribute or use BSD, in source or binary form, then you have to: 1., 2., and 3. Note that none of 1., 2. or 3. say anything about having to redistribute the source. They only talk about the copyright notice (that's 1. and 2.) and advertising (that's 3.).

Furthermore, the first sentence says explicitly: Redistribution in binary form is permitted. It does not say that redistribution in binary form is permitted if and only if the source is also distributed.

Under Brazilian consumer law, this is even more robust. The "oferta" includes all the intrinsic characteristics of the product. The software and its corresponding license are fundamental components of the product's legal and technical reality. The supplier's refusal to provide the source code ...

And because the BSD license does NOT require distributing the source code, all of Brazilian consumer law does not have any force here under the license. There might be other parts of Brazilian law that say "if you buy a product, you must be given the source code". If that were true, I would think that no sane manufacturer of electronics or computers would ever ship any product to Brazil. And having spent considerable time there recently, I'm quite sure this is not the case, as I see lots of electronics and computers in use.

For GPL'ed software, the situation might be different, or it might not be. But that's not a suitable question for a BSD forum.

 

[Alain De Vos]

Note , one controversional thing is the use of blobs and closed software in kernel modules for hardware drivers.

 

[Krush206]

You don't understand BSD license, and copyright.

Copyright law is irrelevant. If we were depend entirely on copyright law, nobody, but the copyright holder, would be legally eligible to enforce.

BSD license permits redistribution of source code but it is not mandatory. You can even make proprietary software using BSD libraries or modules. No limit. This is the main difference with GPL.

It isn't mandatory, unless one's making commercial profit. Licensees are legally eligible to redistribute and use in source form.

What this says is literally: If you redistribute or use BSD, in source or binary form, then you have to: 1., 2., and 3. Note that none of 1., 2. or 3. say anything about having to redistribute the source. They only talk about the copyright notice (that's 1. and 2.) and advertising (that's 3.).

Furthermore, the first sentence says explicitly: Redistribution in binary form is permitted. It does not say that redistribution in binary form is permitted if and only if the source is also distributed.

Nowhere in the GPL there's something as "you may receive source code", yet the licensee is legally eligible to obtain the sources. Similarly. the BSD license doesn't explicitly say "you may receive source code", but does say "use in source form is permitted". This is enough to mean the licensee may receive source code.

 

[ralphbsz]

Note , one controversional thing is the use of blobs and closed software in kernel modules for hardware drivers.

While controversial, it has little to do with the BSD license. Many other things are controversial too and have nothing to do with the BSD license, for example whether certain foods are tasty or not. For example, we just had an excellent Belgian beer (for our christmas eve dinner), but many beer lovers would think it was sacrilegious. It was sold as "Delirium Noel", and has a pink elephant (!) riding a sleigh (!!) while wearing a Santa hat (!!!) on the label. Controversial?