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Comment by otterley | Hacker News Reader

If this software was written by a mechanical process, the license is a nullity. It’s public domain.

Being created by a "mechanical process" from an existing creative work doesn't mean it's not a derivative work.

For instance, if I take a copy of $BIG_BUDGET_MOVIE, and resample the video frames from 1080p to 720p through a purely mechanical transformation, that doesn't make the output public domain.

You might be right, if it is a derivative work and not a new one. There’s some evidence that the authors consider it a new one because they’re attempting to change its license.

The BSD license doesn’t explicitly convey the right to create derivative works but it does convey the right to “modify” the software. (They seem similar but “modify” is a narrower verb.) So is this a modification? A derivative work? A new work entirely? If it shares no code with the work from which it was derived, things are more complex than it may seem (and it no longer fits the “compressed video” analogy very well).

The law and courts are not really settled here from what I can tell. I expect some day hundreds of millions $$$ will be spent on this

It wasn’t written by a mechanical process, though. It was ported (translated) from an existing creative work into a new language.

Surely you wouldn’t say a Spanish translation of a Harry Potter work is in the public domain while the original work is under copyright?

I would agree with you but for the author’s attempt to publish it under a new license. I think they can either claim it’s a new work (in which case it’s public domain) or claim it’s a derivative work (in which case I don’t think they can change the license).

I imagine a court would call it a derivative work if tested.

Things get released as GPL or AGPL that were originally BSD or MIT license all the time. The terms of the copyleft license include all the terms of the attribution licenses. Whether this is a valid thing legally I’m not sure but it doesn’t seem anyone’s challenged it. BSD code is often found in closed-source proprietary products as long as the required attributions are met and the original contributors are understood not to be held to any responsibility or warranty.

The licenses tend to say unmodified or modified copies can be redistributed in source or binary form “provided that the following conditions are met”. Relicensing the code in a way that guarantees those conditions are met has been the accepted thing to do in the community for years - whether that’s GPL/LGPL/AGPL or a proprietary license.

The BSD license (which is the one at issue here) does not explicitly permit the licensee to change the license terms of covered software upon redistribution. Perhaps it would be permitted under an expansive interpretation, but under a narrow reading, it might not be. The default rule, however, is that all rights not granted by license remain with the owner.

As you said, the question has never been litigated or settled.

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