hi, i was playing with the idea about packaging the Decklink SDK by Blackmagic (this is an SDK to access digital video grabbing cards). the SDK consists of a dozen or so header files, and some example code, including pre-compiled binaries. there's also a 200 pages manual on how to use the SDK.
now they have a very strange licensing policy:
you can only download the SDK by agreeing to a very restrictive EULA
(attached; henceforth "the EULA"), which explicitly forbids to
re-distribute "the software".
so far so bad.
however, once you have obtained the SDK, it all becomes a bit blurry for me.
there is no license file included in the package.
however, each and every header file (that is: the entire public API of
the SDK), contains a verbatim license of the BSL (attached).
now i wonder, are these header files licensed under the EULA or under
the BSL?
even if they were licensed to me under the EULA and i was bound to it:
what if somebody grabs the harddisk with my sole copy if the SDK on it,
and starts to distribute it under the BSL?
even if the EULA would be part of the package, wouldn't a verbatim copy
of an alternative license inside an included file take precendence for
this file?
the SDK also contains files like libQt5Core.so.5, which very likely are
not copyright by Blackmagic (though they do as if these files were
theirs). could their EULA apply to these as well?
could someone shed a light?
gfmdsar
IOhannes
PS: I've asked Blackmagic for clarification, and it is pretty clear that
they don't want others to re-distribute it (which rules out public
packaging):
On 11/17/2017 04:29 AM, Blackmagic Developer Support wrote:
> Hi Johannes, thanks for getting in touch, I will try to articulate
the policy as clearly as I can.
> Access to the SDK is governed by the EULA and is only available from
the Blackmagic Design website, applications that are built with the SDK
are then licensed via the more permissive license contained within the SDK.
> It is Blackmagic policy that there should only be one publicly
available source for the SDK (i.e. the Blackmagic Design website) and in
order to download the SDK the EULA must be agreed to.
> In addition, distribution of the SDK is prohibited as per the EULA
("The Licensee must not lease, rent, distribute or sub-license the
Software, or use the Software in a time-sharing arrangement, or in any
other manner that is not the Permitted Use.”).
> I hope that clarifies things.
so somehow they seem to think that they can:
- put a permissive license into their headers and overrule it via some
text on a website.
- *but* force that permissive license onto all applications that use the
SDK.
ianal, but somehow both assumptions seem to be wrong (esp. the 2nd one).
Blackmagic is probably not a lawyer either, but it is them who tries to
force others into their legal views.
PPS: please CC me, as i'm not subscribed.
End User License Agreement for the Software Development Kit
IMPORTANT
YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE
DOWNLOADING, INSTALLING AND USING THE SOFTWARE DEVELOPMENT KIT ('SDK') PROVIDED
BY BLACKMAGIC DESIGN PTY. LTD. (the Licensor).
These are the terms and conditions on which the Licensor licenses to you (the
Licensee) to use the software product known as the Blackmagic Software
Development Kit or SDK and the accompanying documentation (the Software). By
clicking on the "AGREE" button, you are agreeing to the following terms and
conditions (the Agreement). If you DO NOT AGREE to the following terms, you
must not download, install or use this Software.
1. Grant of Licence
1.1 The Licensor grants to the Licensee a non-exclusive, non-transferable,
royalty-free license to use the Software for the term of this Agreement.
1.2 The Licensee is entitled to download, install and use the Software on any
personal computer or networked machine only, for the sole purpose of:
determining whether to create or modify an application using the Software;
and
creating software that will be compatible with the Licensor's products, or
making the Licensee's existing software compatible with the Licensor's products,
(collectively, the Permitted Use).
1.3 The Licensee agrees to use the Software only for the Permitted Use and in
compliance with all applicable laws, including all applicable intellectual
property laws.
1.4 The Licensee must not lease, rent, distribute or sub-license the Software,
or use the Software in a time-sharing arrangement, or in any other manner that
is not the Permitted Use.
1.5 The Licensee may make one copy only of the Software if it is essential for
back-up and archival purposes, in accordance with its use of the Software. Any
such copy must reproduce and contain all of the copyright and other proprietary
notices appearing in the Software.
1.6 The Licensor reserves the right at any time to alter the price, features,
specifications, capabilities, functions, licensing terms, release dates,
general availability or other characteristics of the Software.
1.7 The Software contains sample source code in the form of example
applications and code fragments (collectively the Sample Source Code). The
Licensee may only use the Sample Source Code internally for the Permitted Use.
2. Warranty and Disclaimer
2.1 The Software has not been written to meet individual requirements of the
Licensee and is supplied without warranty of any kind. A failure of any part or
the whole of the Software to be suitable for the Licensee's requirements will
not give rise to any right or claim against the Licensor or its suppliers.
2.2 THE LICENSOR AND ITS SUPPLIERS MAKE NO WARRANTY OR REPRESENTATION TO THE
LICENSEE AS TO THE PERFORMANCE OR OPERATION OF THE SOFTWARE, AND TO THE FULLEST
EXTENT PERMITTED BY LAW DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY
WARRANTIES, INCLUDING (BUT NOT LIMITED TO) MERCHANTABILITY, FITNESS FOR
PURPOSE, SECURITY, RELIABILITY, NON-INFRINGEMENT AND PERFORMANCE OF THE
SOFTWARE.
2.3 The Licensee acknowledges and agrees that it downloads, installs and uses
the Software at its own discretion and risk, and that it will be solely
responsible for any damage to its computer system or any loss of data that
results from such downloading, installing or use of the Software.
2.4 To the fullest extent permitted by law, any condition or warranty which
would otherwise be implied in this Agreement is hereby excluded. Where
legislation implies in this Agreement any condition or warranty, and that
legislation avoids or prohibits provisions in a contract from excluding or
modifying the application of or exercise of or liability under such a condition
or warranty, that condition or warranty will be deemed to be included in this
Agreement. However, the liability of the Licensor or its suppliers for any
breach of such a condition or warranty will be limited, at the option of the
Licensor, to one or more of the following:
in the case of the supply of goods:
the replacement of the goods;
the supply of equivalent goods;
the repair of the goods;
the payment of the cost of replacing the goods or of acquiring
equivalent goods; or
the payment of the cost of having the goods repaired; and
in the case of the provision of services:
the supplying of the services again; or
the payment of the cost of having the services supplied again.
2.5 The Licensee acknowledges that the Software in general is not error-free
and agrees that the existence of such errors will not constitute a breach of
this Agreement.
2.6 The Licensor and its suppliers do not warrant that the Software will be
free from all known viruses and the Licensee is solely responsible for virus
scanning the Software.
2.7 The Licensor and its suppliers do not warrant that the Software will enable
the Licensee to render its products compatible with the Licensor or its
suppliers' products.
3. Liability
3.1 IN NO EVENT WILL THE LICENSOR OR ITS SUPPLIERS BE LIABLE TO THE LICENSEE OR
ANY OTHER PERSON FOR ANY LOST PROFITS, LOST SAVINGS, LOST DATA, OR OTHER
SPECIAL, DIRECT, INDIRECT, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PRODUCT OR SERVICE
FURNISHED OR TO BE FURNISHED UNDER THIS AGREEMENT OR THE USE THEREOF, EVEN IF
THE LICENSOR OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS
OR DAMAGE.
3.2 The aggregate liability of the Licensor and its suppliers upon any claims
howsoever arising out of or relating to this Agreement or any products or
services furnished or to be furnished by the Licensor or its suppliers under
this Agreement will in any event be absolutely limited to US$100
3.3 Unless this Agreement expressly provides otherwise:
to the maximum extent permitted by law, all express and implied conditions,
warranties or liabilities (including liability as to negligence) regarding the
condition, accuracy, suitability, quality or title to the Software are negated
and excluded; and
the Licensor and its suppliers give no condition, warranty, undertaking or
representation in relation to the condition, accuracy, suitability, quality of
or title to the Software (including any data contained in or supplied in
relation to it or reports generated or produced by or with the aid of any of
them).
3.4 The Licensee acknowledges that the Licensor has entered into this Agreement
in reliance upon the Warranty and Disclaimer and Liability clauses set forth in
this Agreement, and that the same form an essential basis of the bargain
between the parties. The parties agree that the limitation of liability
specified in this Agreement will survive and apply even if the Warranty and
Disclaimer or Liability clause, or any limitation of remedies is found to have
failed its essential purpose.
4. Intellectual Property Rights
4.1 For the purposes of this Agreement, the term Intellectual Property Rights
means all copyright, patents, designs, trademarks or service marks, brand
names, product names, trade secrets, know-how, rights to confidentiality and
other intellectual and industrial property rights (including Marks as defined
in clause 6), whether or not registered or capable of registration, in all
parts of the world.
4.2 The Licensee acknowledges that it obtains no Intellectual Property Rights
whatsoever in the Software. As between the parties all Intellectual Property
Rights vest in the Licensor or its suppliers.
4.3 The Licensee must not, except to the extent permitted by any law that
cannot be excluded by the parties, copy, modify, disassemble, decompile, or
reverse engineer the Software nor directly or indirectly permit any third party
to do any of the foregoing.
4.4 The only permitted copying of the Software is for the back-up purposes
referred to in clause 1.5. The Licensee acknowledges and agrees that ownership
of, and title to, the Software and all subsequent copies thereof regardless of
form or media are held by the Licensor and its suppliers.
5. Infringement of Intellectual Property Rights
If the Licensee becomes aware of any infringements or suspected infringements
by any third party of any Intellectual Property Rights in the Software, the
Licensee must immediately notify the Licensor, and must at the request and
expense of the Licensor, take such action as the Licensor may reasonably deem
appropriate to protect its Intellectual Property Rights.
6. Marks
6.1 The Licensee will not adopt or use, nor authorise others to adopt or use,
any trademark, service mark or trade name which includes, or is likely to
mislead, deceive or cause confusion, or is substantially identical with, or
deceptively similar to, any Mark. This clause will survive the expiration or
earlier termination of this Agreement.
6.2 For the avoidance of doubt, the Licensee is permitted to use the following
designations only during the term of this Agreement:
'XXX compatible with Blackmagic Design YYY'; and
'XXX for Blackmagic Design YYY',
where 'XXX' refers to the Licensee's product name, and YYY refers to the
Blackmagic product, "DeckLink," "Multibridge," "Intensity," "HDLink,"
"Videohub," or "UltraScope," with which such XXX product is compatible
(provided that the Licensee's product is compatible with such Blackmagic
product). If the Licensor determines in its sole discretion that any of the
Licensee's products are not compatible with the applicable Blackmagic product,
then the Licensor shall so notify the Licensee, and the Licensee shall
discontinue any use of the Marks on such incompatible Licensee product(s).
6.3 For the purposes of this Agreement, the term Marks means any trademark,
service mark or trade name of Blackmagic or its affiliates, as the case may be,
including but not limited to "DeckLink", "Multibridge", "Intensity", "HDLink",
"Videohub" or "UltraScope", whether or not they are registered or capable of
being registered.
7. Term and Termination
7.1 This Agreement is effective until terminated.
7.2 The Licensor may immediately terminate this Agreement at any time with or
without notice:
at the Licensor's sole discretion; or
if the Licensee breaches a term of this Agreement.
7.3 Upon termination of this Agreement, the Licensee must immediately cease to
use the Software and if capable of return, return the Software (and all copies
thereof) to the Licensor. Where such Software is incapable of return, the
Licensee must permanently delete or destroy the Software and provide a
declaration to the Licensor that the Licensee has complied with this clause
7.3. This requirement is without prejudice to any other rights and remedies
that the Licensor may have in respect of the breach.
7.4 Despite any other provision of this Agreement this clause 7.4 and clauses
2, 3, 4, 5, 6, 7.3 and 8 survive the expiration or termination of this
Agreement.
8. General
8.1 This written Agreement constitutes the entire agreement between the parties
relating to the subject matter of this Agreement and supersedes all prior
communications and agreements between the parties as to its subject matter.
Each party agrees that unless expressly stated in this Agreement, that party
has not relied on any representation, warranty or undertaking of any kind in
relation to the subject matter of this Agreement.
8.2 If any provision of this Agreement or any part of a provision is
unenforceable or void for any reason, then:
that provision of the Agreement will be enforced to the maximum extent
permissible so as to effect the economic intent of the parties, and the
remainder of this Agreement will continue in full force and effect; and
in any other case, such provision must be severed from this Agreement, in
which case a valid, legal and enforceable provision of similar intent and
economic impact will be substituted, and the remaining provisions will continue
in full force and effect as if the severed provision had not been included.
8.3 The Licensee must not, without prior written consent of the Licensor
assign, charge, sub-license, or otherwise transfer any of its rights or
obligations under this Agreement in whole or in part.
8.4 Any delay or forbearance by either party in enforcing any provisions of
this Agreement or any of its rights hereunder will not be construed as a waiver
of such provision or right to subsequently enforce the same.
8.5 Clause headings have been included in this Agreement for convenience only
and must not be considered part of, or be used in interpreting, this Agreement.
8.6 This Agreement is governed by and must be construed in accordance with the
laws in force in the State of California. The parties submit to the exclusive
jurisdiction of the courts of that State and the United States of America in
respect of all matters arising out of or relating to this Agreement, its
performance or subject matter.
8.7 The Licensee agrees to abide by all applicable laws of the State of
California and all applicable jurisdictions, including the federal laws of the
United States. The Licensor reserves the right to enforce its Intellectual
Property Rights before the competent courts of any jurisdiction where an act of
infringement has occurred.
8.8 The Licensee acknowledges and agrees that it will not export or re-export
the Software or any products utilizing the Software in violation of any
applicable laws or regulations of the United States of America.
/* -LICENSE-START- ** Copyright (c) 2016 Blackmagic Design ** ** Permission is hereby granted, free of charge, to any person or organization ** obtaining a copy of the software and accompanying documentation covered by ** this license (the "Software") to use, reproduce, display, distribute, ** execute, and transmit the Software, and to prepare derivative works of the ** Software, and to permit third-parties to whom the Software is furnished to ** do so, all subject to the following: ** ** The copyright notices in the Software and this entire statement, including ** the above license grant, this restriction and the following disclaimer, ** must be included in all copies of the Software, in whole or in part, and ** all derivative works of the Software, unless such copies or derivative ** works are solely in the form of machine-executable object code generated by ** a source language processor. ** ** 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, TITLE AND NON-INFRINGEMENT. IN NO EVENT ** SHALL THE COPYRIGHT HOLDERS OR ANYONE DISTRIBUTING THE SOFTWARE BE LIABLE ** FOR ANY DAMAGES OR OTHER LIABILITY, WHETHER IN CONTRACT, TORT OR OTHERWISE, ** ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER ** DEALINGS IN THE SOFTWARE. ** -LICENSE-END */
signature.asc
Description: OpenPGP digital signature
