BSD family of licenses and consumer rights

[MG]

... 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.



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.



This is not required under permissive licensing.

Users are entitled to nothing with open source software.

Not a specialist on this subject at all, but if you develop and distribute a linux-based platform, aren't you by law obligated to also distribute the source of everything that affects the functioning of the system, like, not an independent application but any system modification?

 

[ralphbsz]

No. If you modify a GPL'ed source file, or modify the kernel (for example by adding or removing a source file), you are required to distribute the modifcations. No more, and no less.

If you write an application that can only run on Linux (for example because it uses Linux-specific kernel interfaces), your application can be under any license you want, including the "I refuse to give this to anyone" license. Note that the Linux kernel is GPLv2, which is less viral than GPLv3.

 

[sidetone]

Two things. Condition 1: GPL or any other license needs to not impose its conditions on libraries it uses through dynamic linking. Condition 2: an optimal license would require modifications which are not under its license to be disclosed. This is freedom, and preservation of freedom, with minimal but necessary requirements. Additionally, a license should be as simple as a BSD license with a few more clauses to achieve this.

MPL 2.0 fits two conditions. While its use in practice is simple, the text to do this is complex, yet clear. Mozilla Public License 2.0 attempts to find a way to make itself optionally compatible with use with GPL. This makes it more complex, yet otherwise easy to understand and use. Apache accomplishes this in a different way, simply by being permissive, but requiring modifications not meant to be under it to be noted. CDDL accomplishes this, while being incompatible with GPL, except with when exceptions or other workarounds are made.

GPL lacks foresight, and it goes overboard in response to worry of programs blocking away modifications from it. GPL3 definitely goes too far.

There's a need for a GPL alternative, which is simple, and allows use of dynamically linked libraries without extending its terms into them. It doesn't need to be GPL compatible, because it's of its own. There's also a need for a simpler Apache license, to also be incompatible with the current GPL's which don't have link exceptions.

The great thing about BSD and MIT licensing is, there's good starting points, that you could add these conditions or requirements for preservation to them, and better preserve code and allow maximum use of the code.

 

[Krush206]

NO.

Sorry for shouting. GPL and BSD license are VERY different from each other. Sorry for shouting again. The BSD license does not require release of source code, period, end of discussion.

This is just the beginning. How may one exercise "use in source form" if the supplier is withholding the source code? A right that exists only on paper violates Art. 422 CC (boa-fé objetiva), Art. 113 CC (interpretação conforme boa-fé e finalidade), Art. 51 CDC (nulidade de cláusulas que esvaziam direitos).

You can shout and argue how much you wish to, but the rights are given.

O direito de propriedade no Código Civil Brasileiro (Lei nº 10.406/2002) é o poder do titular de usar, gozar (desfrutar), dispor (vender, doar) e reaver (buscar de volta) um bem, conforme o Art. 1.228.

Words from my father, a lawyer, a worker at PROCON.

By selling a product whose contract stipulates "use in source form," and failing to deliver such form, the supplier violates Art. 1.228 of the Código Civil, preventing the licensee from fully using and enjoying the acquired product, constituting undue retention of an essential component for the exercise of the right. If the license says one may use the source, but doesn't say how to get, the favorable interpretation is that the supplier is obligated to provide it upon request, to fulfill the grant of rights.

Rights must be effective. If a clause grants a right that cannot be exercised, it is considered abusive or void, because it violates boa‑fé objetiva (good faith) and the função social do contrato (social function of contracts).

 

[Krush206]

Note I'm not saying any of this out of nowhere. These sayings are based on proper research. It isn't hard to find materials in the web.

 

[OpenFreeNet]

By selling a product whose contract stipulates "use in source form," and failing to deliver such form, the supplier violates Art. 1.228 of the Código Civil,

BSD is not a copyleft license, because "use in source form" is not propagated automatically/mandatory also to derived products.

This is how the majority of world understand the BSD license.

Then for security reasons, right to repair, etc.. the laws of a nation (e.g. Brazil) can require the disclosure of source-code. But not for what is written in the BSD license.

 

[Krush206]

Is there copyright law in Brazil? Try to ask Microsoft for source code of Excel. Or maybe Excel is not available in Brazil?

Again, copyright law is irrelevant. However, if you want to bring Microsoft into the topic, you can have a read at their license terms. Nowhere there's a grant of "use in source form", and reverse engineering is prohibited.

What cannot you get? A right that cannot be exercised is null, abusive, and void. This is infringing, not only from a consumer perspective, but also from a civil perspective.

 

[ralphbsz]

How may one exercise "use in source form"

Where would the right to "use in source form" come from in the case of BSD-licensed software? That's a question you have not been able to answer yet. It does definitely not come from the BSD license. Nor from the various Brazilian laws you quote.

A right that exists only on paper violates Art. 422 CC (boa-fé objetiva), Art. 113 CC (interpretação conforme boa-fé e finalidade), Art. 51 CDC (nulidade de cláusulas que esvaziam direitos).

Codigo civil 422 simply says that the parties that enter or execute a contract are required to guard the principle of good faith. Has nothing to do with source code.

CC 113 paragraph 1o subsection II simply says that legal dealings must be interpreted in good faith and the "traditions" (usos) of the location where they are executed, and correspond to good faith. No source code here either.

Codigo de defesa do consumidor 51 simply says that any clause of a contract (with a consumer, not B2B) that renounce or remove rights granted by law. No source code here.

You can shout and argue how much you wish to, but the rights are given.

Sorry, but BSD does not have a right to obtain source code. We have said that over and over again, yet you keep creating a right to source code out of thin air.

By selling a product whose contract stipulates "use in source form,"

Where does BSD say that? It does not. The entirety of various BSD licenses can easily be found on the web, and some versions of it were posted above.

Dear moderators: At what point does the OP and/or this thread need locking?

 

[bvdw78]

Krush206.. in situations where decades of case law simply do not exist while a massive public interest would all but guarantee it, it should occur to you as an option that it's you who is wrong rather than the entire Brazilian legal profession.

 

[Krush206]

If I were you, I'd get my money back from both the course and the lawyer. Not a single company would ever sell any piece of kit containing any BSD-licensed software in Brazil if you or your lawyer were correct. Brazil would become something of a digital island cut off from the rest of the world.

Thankfully, the course is free, as is the lawyer. The main interest on the consumer is to have the device up and running. No legal entity will take action or enforce if the problem isn't collective.

I hope I don't need to repeat myself. I'm afraid you're reading into what you want, not into what's real. I called PROCON, twice, and had the same response, twice. I'm legally eligible to request and obtain the sources.

 

[cadahl]

Then do so, by all means. Demonstrate how this works.

 

[bvdw78]

Indeed. Do it for a derivative of a BSD-licensed product. You will fail though. Don't get your hopes up.

 

[OpenFreeNet]

I hope I don't need to repeat myself. I'm afraid you're reading into what you want, not into what's real. I called PROCON, twice, and had the same response, twice. I'm legally eligible to request and obtain the sources.

editor note: bvdw78 was (rightly) speaking about BSD licenses, and Krush206 is using as example the request of the code of a GPL derived product.

 

[rbranco]

This whole thread is pointless and just disinformation that will pollute any engine search.

 

[hedwards]

This whole thread is pointless and just disinformation that will pollute any engine search.

Yep. The GPL only requires providing the source if you're distributing software built with it under the GPL. If you don't distribute it, then you're not required to provide the source. It's how you used to be able to compile custom FreeBSD kernels that were technically also GPL and not have to provide anybody with source if you opted to modify your own source before doing so. IMHO, the GPL underestimates how inconvenient it can be to maintain a source compatible tree to patch against in order to make use beyond the point where it was when you got the code.

As far as BSD licensed code goes, it mostly boils down to being required to provide notice that BSD code was used and for any BSD licensed code to retain the appropriate license notice. It's really not complicated, you can provide a copy of the code or not, you can't change the license without permission, but you can generally license your patches however you like, so long as it doesn't require changing the license.

They're both potentially great licenses depending on what you're wanting to do, but I prefer BSD licensing just because there's not much practical difference if you don't have the ability to get a lawyer involved to enforce the licensing terms.

 

[Krush206]

Unfortunately, MPSP decided the case isn't collective. The case is archived. However, they haven't denied the right. They archived the case as heterogeneous matter. Heterogeneous implies there isn't enough reputation to be considered homogeneous or collective. A reasonable consumer expects the device to be up and running, not to be modified.

As far as BSD licensed code goes, it mostly boils down to being required to provide notice that BSD code was used and for any BSD licensed code to retain the appropriate license notice. It's really not complicated, you can provide a copy of the code or not, you can't change the license without permission, but you can generally license your patches however you like, so long as it doesn't require changing the license.

The license explicitly states use in source form is permitted. Under copyright law, this is seen as a permission, not a release promise, where the license is seen as a unilateral matter. However, under contract and consumer law, this can be framed as an actual requirement of sources release, where the license is seen as a bilateral matter.

For the license to be framed as a contract, there must exist an intended beneficiary. The intended beneficiary for the "use in source form" clause is the developer. For the license to be framed in a consumption relationship, there must exist commerce. The FTC Act prohibits deceptive or unfair acts or practices in or affecting commerce. However, FTC may only act if a case is collective. The deception is triggered in the representation of a right that is practically unavailable. The FTC could argue this is a misrepresentation of material facts to a subset of consumers (developers). The unfairness is triggered in depriving users of the ability to exercise a right explicitly granted in the license, creating unavoidable harm.

For FTC to act, the strategy isn't just to report the source code is missing, but to demonstrate that the refusal to provide it causes unavoidable harm to a significant number of people who relied on the promises ("use in source form") of the BSD license.

Contrary to what bvdw78 stated, it isn't required to falsely market the product as open-source. The impression the BSD license leaves is enough to frame a case as deceptive or unfair.

 

[bvdw78]

So they archived the case and all you have is further conjecture. Try and sue Sony for the sources of their PlayStation OS. Permission does not create an obligation. There is no harm, let alone unavoidable harm, to what a reasonable consumer expects. The box works as advertised. Game over.

 

[cadahl]

Alright, thanks for an interesting thread.