Date: Thu, 9 Sep 1999 18:21:54 +0000 (GMT) From: Terry Lambert <tlambert@primenet.com> To: walton@nordicrecords.com Cc: tlambert@primenet.com, freebsd-chat@FreeBSD.ORG Subject: Re: Berkeley removes Advertising Clause Message-ID: <199909091821.LAA28728@usr06.primenet.com> In-Reply-To: <19990909025443.23750.qmail@modgud.nordicrecords.com> from "Dave Walton" at Sep 8, 99 07:52:23 pm
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> > OK. Here's my pat answer for this question, using /usr/include/stdio.h > > as my example: > > > > 1) Do your advertising materials say: > > "Uses the fantastic fileno(3) routine!" > > > > 2) Do your advertising materials say: > > "Now, with industry standard 'stdio.h'!" > > > > If the answer to both of these questions is "No", then the answer > > to the question "Do I have to print the acknowledgement in my > > advertising materials?" is also (a profound) "No". > > Ah, ok. Now I get it. (Thanks also to DES). > I'd still call it an advertising clause, though. If you say "Now, with > industry standard 'stdio.h'!", you aren't claiming credit for it so > much as advertising its presence. But I suppose it's all semantics. Most legal debates _are_ semantic debates. My second example, above, works less well than I had hoped, since the definition of "use" is more agregate, and 'stdio.h' is a single file, not full "software". A more apt example might be a bullet item, such as: o Data stored in the reliable Berkeley Fast File System But I didn't want to research exactly what you would have to say, and I didn't want to get what you'd have to say wrong, so I copped out on that example (besides; I had promised my pat answer, which doesn't use the FFS in example #2). > > I'd be happy for you to find case law proving this theory (it was > > documented extensively in the slashdot discussion, by an intellectual > > property lawyer), > > There's a rarity... A licensing discussion on slashdot that I actually > want to read. Got a pointer? Last Friday's postings. > > The current common law in this regard allows the relicense, due > > to the fact that we are treating software as if it were physical > > property. This allows us to apply the docterine of "adverse use" > > in order to establish what is called a "prescrptive lien" on the > > "property". > > I'll just nod politely and pretend I understood that. :) OK, I'll give a real property example, and I'll avoid the classic "driveway right of way" example. Say the city owns a street, technically, because it is a public street. Say further that you have been parking on that particular street in front of your apartment for 5 years, with no problems. Say now that the city wants to paint the curb red there to keep people from parking there any more. This would be illegal for them to "just do". Why? Because even though the city owns the street, they have historically permitted your use of the street as a parking place for your car, with no complaints. This means that you have engaged in "adverse use": you have used their street, without their permission, as a parking place for your car (if you had their permission, the use would not be adverse). By engaging in this behaviour for a legally indisputable "long time" (indisputable on the definitions of "long time" and "tacit permission"), you have gained the "right" to use the street as a parking place. In other words, you have put ownership of the portion of the street where you park into question: you are now a lien-holder on that property (so is the city). A line established this way, without payment to the actual owner, is called a "prescriptive lien". What can the city do? Because it is a city, it can engage in what is called "emminent domain", and condemn your prescriptive lien, and take your lien away from you. --- Now apply this same logic to people treating software as if it were real property. Notice that UC Berkeley is not a city. 8-). > Your examples of SleepyCat and Sendmail don't seem to quite fit > the question. They are derivitive work, not unmodified code. But I'll > take your word for it. They use part of someone else's property, under a license not approved by the property owner (copyright holder). If people keep insisting that software is property, then if you take someone's code, incorporate it in your product, and they don't stop you for "a long time", then they lose their rights to the code. This assumes that crporations continue pushing the idea that software is the same as property (which they have for the past 30 years). Terry Lambert terry@lambert.org --- Any opinions in this posting are my own and not those of my present or previous employers. To Unsubscribe: send mail to majordomo@FreeBSD.org with "unsubscribe freebsd-chat" in the body of the message
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