BSD family of licenses and consumer rights

kjpetrie said:
It appears the OP somehow believes the licence propagates throughout the supply chain, which of course it doesn't. He seems to think because I received the code under the BSD licence I am also distributing it with the BSD licence, which I'm not. The final consumer does not agree to the licence and is not bound by it. The right he cites is only for the person who receives the source code, not for the person who receives any subsequent binary built from it. Of course, PROCON probably think he is that person rather than a downstream third party.
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The seller is bound to consumer laws for everything included in the product. If the license states "use in source form" is permitted, the seller is responsible for making the permission useful. Again, if we depend entirely on copyright laws, only the copyright holders have the right to enforce, and the same applies to GNU GPL. As a consumer of a BSD-licensed-powered product, I have the right to demand useful exercise of the "use in source form" clause. Otherwise, the seller is a fraud.
OpenFreeNet said:
but obviously SONY is not selling the PlayStation with a contract that stipulates "use in source form", because BSD license does not apply to the PlayStation as a product. The BSD license grants permissions to SONY for using the BSD code inside the PlayStation product, only if they meet some conditions. It is a license and not a contract, and it is between SONY and the authors and contributors of BSD code, not with the users of the product.
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Refer to the above.
6502 said:
Now enroll in a copyright law course. Do you think judges in Brazil have studied only "consumer law course" and it is all necessary for their work? Or you think that consumer law is at highest level of all laws?
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Refer to the above.
 
Krush206 said:
If the license states "use in source form" is permitted, the seller is responsible for making the permission useful.
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... but the PlayStation license does not say that "use in source form" is permitted. So, SONY is not responsible of something they do not state. They inform you that their product is based on FreeBSD source code, and that the "use in source form" of FreeBSD source code is allowed. They are not removing nothing from FreeBSD source code rights. The BSD license apply only to the FreeBSD code part, not to the patches made by SONY.

The BSD license is not so well written, but this is they way all the world understand it, and you cannot convince a judge of your interpretation, unless you have very strong arguments.
 
Consider the following analogy. A person purchased an Android mobile phone. Later, it's found a bug in the SoC. The SoC is manufactured by Qualcomm. Motorola marketed the product. Do you call the manufacturer or the marketer?

The same applies to BSD-licensed software. You don't call the copyright holders to obtain the sources. You call the marketer of the product. The transaction is between consumer and marketer, not between consumer and manufacturer.
 
Actually, this is the exact behavior I've experienced from many companies. They shift the responsibility to other companies. This is abusive.
 
Krush206 said:
Consider the following analogy. A person purchased an Android mobile phone. Later, it's found a bug in the SoC. The SoC is manufactured by Qualcomm. Motorola marketed the product. Do you call the manufacturer or the marketer?
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I call Motorola.

Krush206 said:
The same applies to BSD-licensed software. You don't call the copyright holders to obtain the sources. You call the marketer of the product. The transaction is between consumer and marketer, not between consumer and manufacturer.
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If there is a software defect in PlayStation, I call SONY, and they are obliged to fix the defect and send binary patches. This despite in the BSD license there is written "THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. ", because the BSD license is valid between SONY and FreeBSD copyright holders, not between SONY and me. SONY is responsible if the product does not fit its stated purpose. SONY cannot sue FreeBSD copyright holders, but I can sue SONY. The BSD LICENSE does not apply to PlayStation.

If there is no defect, I cannot call SONY pretending the source code of their patches, unless there is some national law about the rights of a costumer to have access to the source code of electronic devices. But this is completely unrelated to BSD license.
 
I am so glad I "unwatched" this thread.
Right now all I see is a lot of theory a lot of shooting down that theory which brings in more speculation.
Kind of watching a trainwreck.
OP bring your legal theory to your local authorities and when it gets decided and starts to affect other jurisdicitions maybe we have new data.
Right now I feel we have theories based in Brazil then jumping over to legal terms in the US and no overriding authority.

Honestly, state your desired goal because at this point in time I have no idea what you want
 
sidetone said:
You're misinterpreting the licenses. In this logic, you may as well try to sue Public Domain, and Creative Commons. This will get nowhere with a judge.
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If we're lucky, I'd be worried that the judge does buy that nonsense and it just means that all these products get yanked from the market over something that wasn't in the license to begin with.
 
sidetone said:
You're misinterpreting the licenses. In this logic, you may as well try to sue Public Domain, and Creative Commons. This will get nowhere with a judge.
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No and no. Public Domain is a waiver of rights. Creative Commons doesn't state "use in source form" is permitted. Words do matter, mate.

Why do you need a judge when you can pursue the matter administratively? This is free, and anybody is permitted to file a petition. The FTC is entitled to fine, inspect, and regulate.
 
Krush206 said:
No and no. [..] Creative Commons doesn't state "use in source form" is permitted.
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Indeed, they says something that is rather similar:

You are free to: Adapt — remix, transform, and build upon the material for any purpose, even commercially.​

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So, if I modify source code under CC BY 4.0, according your interpretation, also the end users of my modified code, must have the rights to "adapt, remix, transform..." my code. But this is not the case. You need the ShareAlike version, having the additional statement
ShareAlike — If you remix, transform, or build upon the material, you must distribute your contributions under the same license as the original.
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OpenFreeNet said:
In case of ambiguity, the BSD license must be interpreted using its "commonly accepted" meaning, because it is the way it was intended by the original BSD source code owners, and successive contributors. And everyone knows that BSD is a permissive license.
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No. You can always file a petition for a rule or interpretive rule. And this isn't limited to the FTC. Your right to petition does matter.
 
OpenFreeNet said:
... but the PlayStation license does not say that "use in source form" is permitted. So, SONY is not responsible of something they do not state. They inform you that their product is based on FreeBSD source code, and that the "use in source form" of FreeBSD source code is allowed. They are not removing nothing from FreeBSD source code rights. The BSD license apply only to the FreeBSD code part, not to the patches made by SONY.
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OK? The moment they chose to include the software in the product, they chose to comply with the license. And the license requires redistributions to reproduce/retain the terms. They chose to reproduce/retain the terms to consumers. Now they're bound to these terms.

Sony clearly made such a statement. The law cares for which implied or express claims are made. They would only be exempted from responsibility if they never accepted the terms, or the license doesn't require reproducing/retaining the terms.

Plus, I was never referring to modifications. The BSD licenses aren't copyleft, where modifications must retain under the same license.
 
Do you think it's that simple? Well, in Brazil, we're free to file a lawsuit. However, it isn't that simple.

Plus, a judicial proceeding wouldn't correct the market's behavior.

Since the behavior is widespread among companies, it's better to file an administrative proceeding.
 
Krush206 said:
OK? The moment they chose to include the software in the product, they chose to comply with the license. And the license requires redistributions to reproduce/retain the terms. They chose to reproduce/retain the terms to consumers. Now they're bound to these terms.
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The BSD text is rather ambiguous. I don't like it. From 0 to 10, I will give to it a 4 as vote.

It says clearly:

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

1. Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.
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So in this point, it seems a viral license. But the intended meaning is that the previous BSD code must be credited under the BSD license. Not the patches, only the previous code. If you don't agree with this, you can sue SONY only if you are one of the copyright holders. Not as consumer. Because according the international application of concept of LICENSE, SONY is not depriving a consumer of a right, but it is not following the LICENSE terms stated from the copyright holders of the source code SONY is using. So, SONY is "stealing" from copyright holders, not from consumers.

But, after years where the BSD LICENSE is considered a non-viral license, it is hard to convince a judge that when you (as author), released code under BSD, you thought it was viral. The original authors of BSD LICENSE didn't thought as a viral one, and also the rest of the world until today.

Then BSD license continue with:

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.
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and this has the same problems of the previous term.

You are trying to sue SONY as CONSUMER instead of COPYRIGHT HOLDER (first problem), and interpreting the terms stated by the copyright holders in a different way from the way they intended them (second problem).

Said this, in law everything is possible. But, you are not convincing me, with your imprecise reasoning.
 
Krush206 you still don't seem to know the meaning of the word "permit". A right was granted to Sony when they came into possession of BSD-licensed code, by whatever means, to do any of three things with the code that they either modified or not:

1. Redistribute the code in binary form
2. Redistribute the code in source form
3. Nothing at all.

Options 1 and 2 require Sony to adhere to the terms set forth in the license. Those terms boil down to retaining attribution in relevant places. Exercising their rights under option 1 does not imply any obligation beyond the license terms (ie. attribution) contractual or otherwise.

So copyright-wise you have no standing and will be dismissed. You are not nor do you represent the copyright holder. Sony met their obligation in good faith under the terms which exist as an agreement between the BSD rights holders and Sony alone: they provided attribution in the appropriate places. The copyright holder may disagree and someone may listen. You, some random yokel from the sidelines, disagree? Tough luck.

Consumer rights-wise you also have no case. No judge is going to tell you that a reasonable consumer of a gaming console is in their rights to demand source code from the manufacturer because the primary functions of a gaming console are in no way being impeded and you were in absolutely no way deceived by anyone. You can play games on a PlayStation just fine without the source code. You were never promised any source code at all, so nobody is deceiving you.

In fact, you can use plain old FreeBSD itself just fine without a copy of the source code. Nobody is under any obligation whatsoever to provide you the FreeBSD source code either. It's a courtesy that it's so easily available from so many places these days, but not a legal obligation of any kind. I actually remember the mid-1990's when I first heard of FreeBSD and had a choice: download the whole thing using my 9600 baud modem and rack up a prohibitively expensive phone bill, or travel across the country by bus and train to a university where some guy I knew from the BBS scene was kind enough to put the distribution set on a QIC tape for me. That was a kindness, not a legally obligated transaction. One I am still grateful for to this day.
 
For the years that I've read the BSD license (original to current) plus stuff about the original AT&T lawsuit, the BSD license always seemed to read (yes simplistically):

Here's some code. Feel free to modify it, sell a product based on it, make money on your product.
BUT:
we provide no support, we assume no liability. ALL we ask you to do is preserve the copyright terms in the code you receive, your modifications are licensed under whatever you choose.

The BSD License Explained: A Complete Guide for Developers and Businesses

Understand the BSD license, a permissive open-source license that lets you freely use, modify, and sell software with minimal restrictions.
uslawexplained.com uslawexplained.com
 
Krush206 said:
When a company states that the product includes software under a BSD license, it is making a representation.
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Absolutely no, under 3-clause BSD the first two clauses deal with attribution and the third with representation.
Under no circumstances can the inclusion of a copyrighted BSD project used as advertisment/representation for the new project - the new project can be proprietary or totally free, no representation is allowed unless explicitly allowed by contacting the copyright holder.

The first two clauses deal with both ways the 2nd party might ship a modification to the BSD copyrighted project and ensure that the copyright is upheld in its basic form, the attribution.

Edit : just to make it clear, when a company states, it is making an attribution.

Krush206 said:
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.
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No. Where do you get this from? Read the BSD license variations. They all deal with attribution and representation. There is absolutely nothing about open source logistics. Nothing. Zero.

You are drawing a chain of assumptions from an invalid hypothesis. The licenses have nothing to do with logistics of redistribution. They're there to ensure the 2nd party doesn't overstep on the copyright of the holder, and that holder is always attributed.

The entire thing is BSD vs GNU. What you speak of is what GNU set to do, and it wasn't universally acclaimed.
LGPL vs BSD doesn't mean a thing in practice. When we import any of those libre licences into our proprietary code, we just import the licences. If the author is going to put enough in for somebody to reach his project, good, if not, good. I don't care.

The licence checking systems in enterprises are binary, I've never ran into a situation look we can use this but we need to put a download link in "About program" box, no, that kind of shit is not done, if the author wants hoops we're simply not going to use it - it is going to be treated as a commercial licencing issue. We have allowed licences, BSD, LGPL, MIT, so on, and for those we just use and attribute, and never represent. That's it.
 
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mer said:
Here's some code. Feel free to modify it, sell a product based on it, make money on your product.
BUT:
we provide no support, we assume no liability. ALL we ask you to do is preserve the copyright terms in the code you receive, your modifications are licensed under whatever you choose.
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For liability - most licenses including proprietary do not include liability.
 
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mer said:
Right now all I see is a lot of theory a lot of shooting down that theory which brings in more speculation.
Kind of watching a trainwreck.
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Worse yet, nobody is stepping in to petition. I've done my part. Why do none of you step in to petition? I'm afraid the FTC may only consider petitions from US citizens.

It isn't hard to understand this matter. If the copyright holders never intended the software to be usable in source form, they wouldn't explicitly write as such in the license. It'd make zero sense to write this in the license and refuse to disclose the source code. There's nothing wrong or imprecise on this.
 
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