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tl;dr, how can I bundle a gratis but closed-source game in an otherwise BSD 2 clause licensed free software project?

I develop a free software project which is licensed under the BSD 2 clause license. As an easter egg, I'd like to include a small game in it. The developer of the game has published it as a binary available free of charge from his website, and there is no license or source provided. I am planning to contact him for permission to redistribute the binary.

Assuming that the developer is happy for me to redistribute the binary, but wants his game to remain closed-source, what would be a good choice of license for him to agree to release it as? Basically something that says "copyright blah blah, redistribution in binary form is allowed" would be great.

Finally, is this compatible with my project being licensed under BSD two-clause license? Does the fact that BSD license allows source redistribution mean that someone getting a hold of the game's source would be allowed to redistribute it, conflicting with the developer's desire for it to remain closed source (in the event someone stole the source or something)? Does it conflict with my project even being BSD licensed for it to include a closed-source binary?

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    Why not license the two parts separately? I.e., your source is licensed under BSD, and this .zip file over here is licensed under "you may distribute exact binary copies of this file but not reverse engineer it, blah blah blah..." (basically whatever the author agrees to). By the way, if the author doesn't agree with you including it in your project, then the question is moot because you are then not allowed to do it at all.
    – Brandin
    Nov 29, 2018 at 10:39
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    Your "what if someone stole it" question is answered under the GPL FAQ: If someone steals a CD ... does the GPL give him the right to redistribute that version?. Note that question assumes a CD that was stolen and assumes the license was GPL, but the answer remains the same even if something else was stolen (say, a USB key, or say, remotely breaking into a remote server and stealing code that way), and it remains the same even if the license is different from GPL.
    – Brandin
    Nov 29, 2018 at 10:42
  • Thanks for the comments. I will include a separate license for the bundled game then. I've discovered that it was uploaded to itch.io, whose terms of service say that by uploading content, publishers grant users "a non-exclusive, perpetual license to access the content and to use, reproduce, distribute, display and perform such content as permitted through the functionality of the Service. Users shall retain a license to this content even after the content is removed from the Service." So I think I am in the clear, but I will get the developer in the loop anyway as a courtesy.
    – Chris Billington
    Nov 29, 2018 at 19:09
  • For redistribution to other people I would want an explicit statement. "to use, reproduce, distribute ... as permitted throug the functionality of the Service" sounds like it would not permit distributing it elsewhere, for example, on your Web site or on Github. Presumably you want to do that.
    – Brandin
    Nov 29, 2018 at 22:01
  • Well, it says "Users shall retain a license to this content even after the content is removed from the Service." which seems to confirm that users can distribute it even if it's not available on the website anymore. But I'm asking the developer for express permission anyway.
    – Chris Billington
    Nov 30, 2018 at 0:09

1 Answer 1

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The 2-clause BSD license is a permissive license, so from that side there is no expectation that the license is incompatible.
There is a possibility that the license of the binary-only code forbids combining it with open-source software, which would cause an incompatibility, but that is not very likely.

To prevent confusion, you should make it clear that different parts of the application are distributed under different license terms (and which terms apply to which part). Then you have immediately side-stepped the issue of people trying to apply the BSD license to the non-open-source portion.

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