BSD-3-Clause variant: "The name(s) <name> must not be used ..."

[richardfontana]

I found this license in Apache Lucene:

Copyright © 2003,
Center for Intelligent Information Retrieval,
University of Massachusetts, Amherst.
All rights reserved.

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. The names "Center for Intelligent Information Retrieval" and
"University of Massachusetts" must not be used to endorse or promote products
derived from this software without prior written permission. To obtain
permission, contact info@ciir.cs.umass.edu.

THIS SOFTWARE IS PROVIDED BY UNIVERSITY OF MASSACHUSETTS AND OTHER 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 HOLDERS 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.

I believe clause 3 is not a match to BSD-3-Clause for three reasons:

• It has "The name " rather than "The name of"
• It has "must not" rather than "may not"
• It adds a contact sentence for asking for name-use permission.

Possibly some or all of this variance can be captured by revising the BSD-3-Clause XML file but I'm not sure.

[swinslow]

Thanks @richardfontana! From a quick redline, I see one other minor difference:

• It omits "specific" before "prior written permission"

I note from a Google search that the literal phrase "must not be used to endorse or promote products" appears in several other BSD-3-style licenses, though each of them has additional clauses as well. (Several appear to include some version of the contact sentence.)

I sort of want to say that this could be accommodated by markup in BSD-3-Clause. But particularly given the mix of adding the specific instruction for how to obtain permission, plus the very slightly arguable differences between "may not" / "must not" and the omission of "specific", I think there's an arguable case that this could potentially have a different legal effect than BSD-3-Clause. (As a practical matter, I wouldn't expect it to, but someone could make a non-frivolous argument that these are relevant differences.)

Given that, I'm inclined to add as a separate license, but could be talked out of it.

[swinslow]

Discussed on 2023-02-09 legal team call, had a general feeling that this is so close to BSD-3-Clause that we want to call it a match, but some discomfort that it may cross the threshold of being arguably substantively different to warrant a separate identifier.

Didn't really reach a decision, so others should please comment here with their thoughts :)

[bsdimp]

@swinslow I wasn't able to make the call... What's the thing that causes it to cross the line? IANAL, but none of these seem legally different...

Do we have a list of those items that make two nearly identical licenses be different somewhere, or is it a 'know it when I see it' standard that those with law degrees reach consensus on?

[seabass-labrax]

We certainly do have a list of definitely equivalent words (https://spdx.org/licenses/equivalentwords.txt), but it doesn't cover this case, unfortunately.

[bsdimp]

Hmmm. that list seems to be variations in spelling or spaces only...

[jlovejoy]

re: "The names "Center for Intelligent Information Retrieval" and
"University of Massachusetts" must not be used to endorse or promote products
derived from this software without prior written permission."

this is most similar to "The name of [name] may not be used... " which is accounted for already, see https://github.com/spdx/license-list-XML/blob/main/src/BSD-3-Clause.xml

In which case, this is plural v. singular - which seems obvious to accommodate.

As for "the name of Joe may not be used" v. "the name of Joe must not be used" - I'm having a hard time seeing a difference in meaning other than the former sounding more polite. When stated in the affirmative, may v. must has a big difference, e.g.:

• you may use the name
• you must use the name
  In this case, the former is permissive, but not required, whereas the latter is obligatory.

But when you switch it to "you may not... " or "you must not... " - neither is giving permission, but there is nothing being required instead either. (hopefully I'm making sense)

I'm happy to hear other thoughts here, though!

as for "specific prior written permission" v. "prior written permission" - the inclusion of "specific" seems extraneous to me, but again - happy to hear other thoughts!

[swinslow]

@jlovejoy I tend to agree with your analysis that the practical difference between the two is limited.

One note to consider, though: If we add this as markup to BSD-3-Clause, one of the changes would be to include an <optional> tag for "To obtain permission, contact info@ciir.cs.umass.edu." (Or some variation which includes a generic email address.) If we do that, I think that the "To obtain permission..." line would show up at https://spdx.org/licenses/BSD-3-Clause.html for everyone. It would show up with text color indicating it is optional, but for folks who look to the License List for getting a copy of the text, they might start expecting that this line is "part of" the standard BSD-3-Clause.

Given that, I might lean towards treating this one as a separate license identifier?

[jlovejoy]

good point @swinslow - It still sort of pains me to add a license for these changes which are pretty minor, but given the amount of markup that BSD-3-Clause is already collecting, it does sort of seem "safer" to add it...

maybe we add it as is (using Umass name, no markup) and see if this variant is found used by others?

[bsdimp]

How big a tent should 3-BSD be? And if it isn't big enough for this, then how do we partition it? And won't some other license accumulate things if we don't put it in 3bsd? Put another way, it seems a bad choice to not include it just because 3bsd is too complex without a bigger plan because there are a dozen more of these we'll see in the coming months... and what do we do with them? How do we know where to add them?