What is the purpose of the "non-endorsement clause" in the New BSD license?

Question

Note: This question is not about the "obnoxious BSD advertising clause". The New BSD license does not contain that clause, and is compatible with the GPL.

I'm trying to pick between the New BSD license and the MIT license for my own projects. They are essentially identical, except the BSD license contains the following clause:

• Neither the name of the <organization> nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission.

Why would anyone want to use this clause? What's wrong with gaining some notoriety if someone makes a well-known piece of software using your code? Also, wouldn't dictating what users can and cannot do with your given name fall outside the domain of intellectual property?

Answer 1

What's wrong with gaining some notoriety if someone makes a well-known piece of software using your code?

(The issue is not with someone using your code. The issue is with someone using your name or your product's name as an endorsement for their code or actions ... and giving you or your code a bad reputation as a result.)

I can think of a number things that could be wrong with that kind of notoriety:

• it could reduce your options in getting employment
• it could drive away current or potential sponsors (for an open source project)
• it could reduce your chances of getting further research funding (for an academic),
• it could deter paying customers (for a company)
• it could attract unwarranted attention from law enforcement
• it could attract opportunistic or vindictive lawsuits
• it could make you a target for a social media hate storm.

Also, wouldn't dictating what users can and cannot do with your given name fall outside the domain of intellectual property?

The "domain of intellectual property" is not a concept that has any significance to the enforceability of the terms of a license.

What matters is whether people who want to use the licensed material are prepared to accept the license conditions that you have set. As the owner of the IP, you are entitled to place any conditions on its use that you want to^*. Other people can then choose to use the material subject to the conditions, or not use it at all.

^{* - Actually, there probably are limits on what conditions you can set. A condition requiring someone to perform an illegal act is probably illegal, and definitely unenforceable. Also, legal but "unconscionable" conditions are likely to fail a challenge in a lawsuit. IANAL - talk to one if you need legal advice.}

Answer 2

The problem is not if the people do a good job of using your code. The problem is if the users of the software modify your code and make a mess of it, and the unwary assume your code is to blame. This clause prevents them from tarring your product with their bad name.

Answer 3

If I add backdoors and vulnerabilities to Linux and distribute the result, the GPL allows me to do it. But we definitely don't want me calling it "Linux" and describing it as "The operating system designed by Linus Torvalds". Linus has a legitimate interest in being able to distinguish the official release, whose quality he controls, from everything else, whose quality he has no control over.

Answer 4

I would also look at the implications of tools that are used for nefarious purposes. For example, if the zigbee hacking guy's code was used in an application that later caused some breach at a big casino in Vegas. Non-attribution of endorsement would take him further from liability. I suppose it could still be argued, but I would understand this approach.