While I’m a fan of all the open-source code available on the Internet these days, I sure wish they paid more attention to the licensing agreements to which they require us to agree when we use their code. They’re just confusing. Most just go along with them, but it bothers me enough that I try to avoid them at every turn. Here are some examples with my comments interspersed.
BSD 2-Clause License
Copyright (c) <YEAR>, <OWNER>
All rights reserved.
The parenthesized “c” is not a legal substitute for ©. Fortunately it is not required at all when the word “Copyright” appears. (One of “Copyright”, “Copr”, or © is required in a copyright statement.) The statement “All rights reserved” is redundant and is also not required. These are minor points; they just demonstrate the lack of sophistication of the open source community and those who advise them.
Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:
- Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.
- 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.
Note that software authors like us who incorporate open-source software into our programs are required to explicitly tell you about the above conditions under the second of those conditions. However, since we don’t distribute the source code, the first condition is irrelevant to you. And since you can’t extract the binary version of the code from our program (it is inextricably compiled and linked into our program in a way that makes it impossible for the end-user to even find, let alone extract), the second condition will never apply to you. Despite these facts, we’re required to tell you the conditions under which you can redistribute this thing that you don’t have, can’t find, and would have no reason to redistribute.
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. IN NO EVENT SHALL THE COPYRIGHT HOLDER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
There are two problems with the above clause. One is that it is unenforceable because you have no way to consent to it. If you are maimed by our program while it is running a line of licensed open-source code, your lawyer would sue the pants off both us and the copyright holder of the open-source code. You would lose, but not because of this clause. It would be because it would be impossible to show that the particular lines of code licensed under this agreement were responsible for your loss of a limb or whatever.
The problem with the BSD licenses is that they really don’t account for 99% of the usage of software components — that is, when they are compiled into another program. It should be sufficient for us to say the following: Portions Copyright <YEAR>, <OWNER>. The owner still gets their attribution and there’s no confusing legalese to confuse an end-user.
Here’s another example.
Copyright (c) <year> <copyright holders>
Again, the parenthesized “c” has no legal standing.
Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the “Software”), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:
This paragraph defines “the Software” as the files “obtained”. It gives us a list of allowed uses. The construction of the sentence is confusing. If we simplify it by removing what I would call “parenthetical” clauses, we get: “Permission is granted… to deal in the Software without restriction… and to permit persons to whom the Software is furnished to do so, subject to the following conditions”. The question is: Do we have permission to deal in the Software without restriction, or are we subject to the restrictions listed in the paragraph that follows (“subject to the following conditions”)?
One could interpret the paragraph to mean that the person obtaining the software can do two things: First, deal in the Software without restriction, and second, permit other people to do the same but only if the conditions that follow are met. That would mean that a company like ours, which is not distributing the Software (i.e. the files we obtained) is not obligated to meet the conditions of the next paragraph.
One could also interpret the paragraph to mean that the person obtaining the software must always meet the following conditions whether they’re “dealing in the Software” or “permitting other persons to do so”. I think this is the meaning intended by the authors of this license agreement, since users of this form of license seem to believe their copyright notice must be included in any program that makes use of their Software.
The problem, however, with the second interpretation is that it imposes restrictions on those who would “deal in the Software”, and the first part of the statement makes it clear that those who “deal in the Software” can do so without charge and without restriction.
The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.
Remember “the Software” is the files “obtained” by the user of the software. We do not distribute copies of those files, and therefore, we do not distribute the Software. So if we interpret the preceding paragraph as saying those who “deal in the Software” are subject to the conditions here (that is, the requirement to include the copyright notice and the permission notice in all copies of the Software), then since we’re not distributing the Software, we’re not obligated to include the copyright statement anywhere in our program (other than leaving it in the original source code, but that is irrelevant to the end user who uses our program).
This paragraph further begs the question, “What is the ‘permission notice’?” The preceding paragraph identifies itself right away as granting permission, so it could be argued that it is the “permission notice”. That leaves the next paragraph in limbo:
THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
I would argue that this paragraph, which I would call a “disclaimer”, not “permission”, is for my benefit only and that the preceding paragraphs do not obligate me to pass it along to anyone to whom I might distribute the Software. I’m confident that no open source software author who uses this license agreement does so believing that this disclaimer would not be provided to subsequent recipients of the Software.
I am not a lawyer, but I believe as an expert in computer software and the English language that there is nothing in this license agreement that affects me in any way other than giving me permission to use the product of this open source software author’s work with no attribution, at no charge, and with no restrictions.