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Theo de Raadt on Relicensing BSD Code
Contributed by dwc on Thu Sep 13 03:55:24 2007 (GMT)
from the see-reason dept.

Anonymous Coward writes:

KernelTrap has an interesting article in which Theo de Raadt discusses the legal implications of the recent relicensing of OpenBSD's BSD licensed Atheros driver under the GPL. De Raadt says, "it has been like pulling teeth since (most) Linux wireless guys and the SFLC do not wish to admit fault. I think that the Linux wireless guys should really think hard about this problem, how they look, and the legal risks they place upon the future of their source code bodies." He stressed that the theory that BSD code can simply be relicensed to the GPL without making significant changes to the code is false, adding, "'in their zeal to get the code under their own license, some of these Linux wireless developers have broken copyright law repeatedly. But to even get to the point where they broke copyright law, they had to bypass a whole series of ethical considerations too."

From: Theo de Raadt
Subject: Further developments regarding the Atheros driver
Date: Wed, 12 Sep 2007 15:23:08 -0600

Reyk and I have decided to show something from the private handling of
this Atheros copyright violation issue. It has been like pulling teeth
since (most) Linux wireless guys and the SFLC do not wish to admit
fault.  I think that the Linux wireless guys should really think hard
about this problem, how they look, and the legal risks they place upon
the future of their source code bodies.  There are lessons to be
learned here -- be cautious because there is no such thing this
"relicensing" meme that your user community spreads.

In their zeal to get the code under their own license, some of these
Linux wireless developers have broken copryright law repeatedly.  But
to even get to the point where they broke copyright law, they had to
bypass a whole series of ethical considerations too.

I believe these people have received bogus advice from Eben Moglen
regarding how copyright law actually works in a global setting.
Perhaps the internationally based developers should rethink their
approach of taking advice from a US-based lawyer who apparently knows
nothing about the Berne Convention.  Furthermore, those developers are
getting advice freely from ex-FSF people who have formed an agency
with an agenda.  Some have suggested that the SFLC was formed to avoid
smearing the FSF with dirt whenever the SFLC does something risky.
Don't get trampled; there could be penalties besides looking unethical
and guilty.  Be really cautious, especially with things like this
coming to mess with our communities:
    http://www.linux-watch.com/news/NS8560536106.html

Below, you can find a mail was sent by me (in consultation with Reyk)
on Sep 5 to various people in the Linux wireless developer community
and their advisors in the SFLC.  Inside that message, you can find
another message from Sep 1 that they never replied to.

On Sep 5 there was finally a reply from Eben Moglen, but it added
nothing constructive to the process, except that Eben Moglen admitted
that the Linux developer's had done an "Adaptation"; I will show one
particular sub-sentence from Eben's reply mail:

    "we wish to secure as much of the work done to adapt Reyk's
    code for use with the Linux kernel as the authors will
    permit, [...]"

I don't think Eben wanted to say that.  In copyright law, the word
"adapt" has a very clear meaning.

From our perspective, we see the SFLC giving bad advice three times to
(some subset of) the Linux wireless developers (who they call their
"clients", after apparently more than a year of consultation):

The first advice given by the SFLC resulted in Luis, Jiri, and Nick
simply replacing Reyk's ISC license with the GPL around large parts of
Reyk's code in various repositories.  (Let us not concern ourselves
with Sam's code for now).  That occurred roughly around August 25.
Our developers have cloned those public/published repositories, though
some of them have now been taken offline by the developers who
operated them.

The second advice given by the SFLC was that a GPL can be wrapped
around another author's work.  That advice was re-posted by John
Linville on Sep 5 at http://lwn.net/Articles/248223/ but it
unfortunately says nothing about _when_ an author of a derivative
receives the right to do such a thing.  The SFLC waives that concern
away.  But that is the clincher -- by law, a new person doing small
changes to an original work is not allowed to assert copyright, and
hence, gains none of the rights given by copyright law, and hence,
cannot assert a license (copyright licenses surrender a subset of the
author's rights which the law gives them; the licenses do not not
assert rights out of thin air).

You can see this 'relicensing approach' is still published in files in
the repository at http://madwifi.org/browser/branches/ath5k, for
instance see http://madwifi.org/browser/branches/ath5k/ath5k_phy.c.
This repository has also been cloned by some of our developers to show
proof of publishing.

Then my mail (shown below) arrived at the SFLC.  There has been one
reply from Eben to that mail, as noted above.  Naturally I am tempted
to show more mails...

It appears that the mail I sent had some effect; because it seems that
the developers received new advice from SFLC -- a third approach.
Linville did not even follow what he re-posted from the SFLC on the
5th, but took an even more conservative approach.  The Linville
repository replaced Jiri's repository (which Jiri disconnected), and
all of Reyk's original work now appeared with only an ISC license as
Reyk had it.  In this case Nick and Jiri have been added as co-owners
of the copyright, though.

    http://git.kernel.org/?p=linux/kernel/git/linville/wireless-dev.git;a=blob;f=drive \
rs/n%20%5Cet/wireless/ath5k_hw.c;h=07ad1278b39037caf68825cabcf9469db059dfc8;hb=everyth \
ing

    http://git.kernel.org/?p=linux/kernel/git/linville/wireless-dev.git;a=tree;f=drive \
rs/n%20\et/wireless;h=2d6caeba0924c34b9539960b9ab568ab3d193fc8;hb=everything

Those files are still invalidly being distributed -- Nick and Jiri did
not proveably do enough original work to earn copyright on a
derivative work, since their work is just an adaptation.  It is in
their best interest to talk to the original author in respectful tones
and have him recognize their work.  A lawyer like Eben Moglen will not
help at this point since his misrepresentations have caused all this
grief to begin with.

Now it may seem petty to be pointing out the above, but these Linux
wireless developers have ignored the ethical considerations of
honouring the author for his work, and then violated the law _3 times_
under advice from a ex-FSF laywer.  Come on.  By that point someone
should at least be offering the author an apology, and who cares if it
makes the lawyer look like he's incompetent.  The only thing he is
competent at is convincing a bunch of programmers to follow his agenda
and walk into a legal mess.

If those developers who live in Europe want a court case in the EU
where the original author lives, they should perhaps consider that an
American lawyer who has made three bogus assessments in a row
regarding a criminal code won't be able to help them in that
jurisdiction.  Furthermore, the American developers involved should
recognize that copyright law cases decided in one country apply to
other countries.

By the way, Richard Stallman eventually replied with the one liner
"The FSF is not involved in this dispute."

-----------

To: Eben Moglen 
cc: norwood@softwarefreedom.org, bkuhn@softwarefreedom.org,
        fontana@softwarefreedom.org, karen@softwarefreedom.org,
        mcgrof@gmail.com, jirislaby@gmail.com, mickflemm@gmail.com,
        rms@gnu.org
cc: reyk@cvs.openbsd.org
cc: jeremy@kerneltrap.org
Subject: Re: Derivative Works test 
In-reply-to: Your message of "Sat, 01 Sep 2007 14:17:55 MDT."
             <200709012017.l81KHtX8030094@cvs.openbsd.org> 
Date: Wed, 05 Sep 2007 11:59:06 -0600
From: Theo de Raadt 

Greetings,

I see that the Linux wireless developers and the SFLC have not replied
to my previous mail (perhaps suspecting this shields them in some
way), so I include it below, so that you have a second chance to read
it.  There is still time for you to do what is right.

Now that the files can be found in a PUBLISHED repository, some people
are now reading the files of Reyk's which you have wrapped a GPL
license around.  Since it is a published repository, it is obviously
no longer a proposition.  Publication has perhaps occured.

That repository is at

	http://madwifi.org/browser/branches/ath5k

We have made copies of this repository, so there is no need to rush
and take it down.

At first glance those changes sure looks like a translation to Linux,
a re-edit for formatting, and it looks like the "authors" add
basically nothing that can be considered original authorship, and thus
nothing makes this a derivative work valid for placing a new copyright
around.  Since you prefer to view these things from a US viewpoint,
I will point you at a document you are more familiar with:

	http://www.copyright.gov/circs/circ14.html

In particular, note this part of a paragraph:

    To be copyrightable, a derivative work must be different enough
    from the original to be regarded as a new work or must contain a
    substantial amount of new material. Making minor changes or
    additions of little substance to a preexisting work will not qualify
    the work as a new version for copyright purposes. The new material
    must be original and copyrightable in itself.

And, note further:

    The copyright in a derivative work covers only the additions, changes,
    or other new material appearing for the first time in the work. It
    does not extend to any preexisting material and does not imply a
    copyright in that material.

Furthermore, I urge you to understand that Reyk is a German citizen,
and that Germany (like the rest of the world outside the US) impliments
the Berne convention much more strictly than the US does, including in
particular these details which come under the subsection of Moral Rights.
German law would apply in this case, because that is where Reyk
would file against the Linux developers in question.

Some of those files which have had a GPL placed on them are Reyk's
work, with basically only a few small editorial changes, and then a
GPL placed at the top.  That is not legal, and we ask you stop
distributing them immediately.  I suspect that you are being misled
by the SFLC in legal matters, perhaps because some of you have not
given the SFLC the true facts about how minor your changes are, or
perhaps because the SFLC has an agenda.

I think that a further study by you and the SFLC will convince you
that the changes do not create an original work, and thus, are not
acceptable for assertion of copyright.

I sure hope that you are not making a mistake of placing a copyright
on something in an illegal fashion.  There are penalties, and Linux
will suffer greatly from the PR.

I urge you to reply.


> Linux wireless developers, SoftwareFreedom, and a welcome too
> Richard.
> 
> Regarding http://marc.info/?l=linux-wireless&m=118857712529898&w=2
> 
> 1.  Are you prepared to go to court to test if the work you
> have done lets you put copyright on those files?  Your
> contribution is, we must all agree, rather small compared
> to Reyk's considerable reverse engineering and
> authorship contribution.
> 
> I will remind you of:
> 
> 	http://www.copyright.gov/circs/circ14.html#derivat
> 
> But please be aware that the authors of the work live in various
> countries, in particular Reyk lives in Germany.
> 
> 2.  Have you read and taken to heart the following paragraph from the
> GPL?
> 
> 	For example, if you distribute copies of such a program, whether
> 	gratis or for a fee, you must give the recipients all the rights that
> 	you have.  You must make sure that they, too, receive or can get the
> 	source code.  And you must show them these terms so they know their
> 	rights.
> 
> Why do you not pass the rights you have on to your brother you got
> it from?  Is that not the road to fanaticism?
> 
> 3.  Would you like to reconsider the monopolistic and anti-community
> action you are taking by appropriating a large body of BSD licensed
> code gotten from your brother in the community, and purposefully
> not giving back to your brother?  Or are you that greedy?
> 
> 
> Please let me know, so that I can proceed.  It appears that we have
> offers for legal representation in Germany.
> 
> I would be happy if you changed your mind based on any of the points
> above, you don't need to accept them all.  You can decide that you are
> (1) unwilling to participate in a court case, (2) believe in your own
> ethos, or (3) generous and sharing members of this planet and
> community.
> 
> Thank you for your rapid attention to this mail.
[topicopenbsd]

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  Re: Theo de Raadt on Relicensing BSD Code (mod 7/53)
by Jeremy Huiskamp (kamper) on Thu Sep 13 01:56:55 2007 (GMT)
  I know it's Reyk's code and he can do what he likes and I trust him and Theo to have the legal details correct, but geez does it ever suck to see open source people talk about suing each other. What a mess!
  [ Show thread ] [ Reply to this comment ] [ Mod Up ] [ Mod Down ]

  Quick Recap... (mod 13/51)
by Darrin Chandler (dwc) (dwchandler@stilyagin.com) on Thu Sep 13 03:21:07 2007 (GMT)
http://www.stilyagin.com/darrin/
  For those of you joining us late, Theo de Raadt has summed up the situation to date in a concise posting to misc@
  [ Show thread ] [ Reply to this comment ] [ Mod Up ] [ Mod Down ]

  Re: Theo de Raadt on Relicensing BSD Code (mod 3/47)
by Anonymous Coward (71.140.107.53) on Thu Sep 13 03:22:06 2007 (GMT)
  There's an appropriate statement on KernelTrap that I'd like to repeat here, just to stop all the FUD before the flood:

Theo is just trying to make things right. Teach the Linux developers that a license must be respected and the source code __MUST__ have the BSD copyright if it is not significantly changed.

Theo is not trying to remove code, he's just trying to convince them to agree with the license.
  [ Show thread ] [ Reply to this comment ] [ Mod Up ] [ Mod Down ]

  Do the right thing - Its not too late (mod 4/52)
by Anonymous Coward (66.65.128.40) on Thu Sep 13 03:38:29 2007 (GMT)
  Isn't time the Linux wireless developers involved do the right thing? Take for example when some GPL code showed up in one of OpenBSD's drivers - what did Theo do? The whole driver was removed. Problem solved in short time. What do Linux devs do? Go run to agenda driven lawyers who tell them to ignore the BSD license. Isn't it about time they own up the their mistakes and stop messing around?
  [ Show thread ] [ Reply to this comment ] [ Mod Up ] [ Mod Down ]

  Re: Theo de Raadt on Relicensing BSD Code (mod -4/48)
by Matthew Dempsky (70.143.82.180) on Thu Sep 13 03:38:36 2007 (GMT)
  The article says "To: Eban Moglen", but it should be "To: Eben Moglen", as Theo's original email stated. :-)
  [ Show thread ] [ Reply to this comment ] [ Mod Up ] [ Mod Down ]

  Re: Theo de Raadt on Relicensing BSD Code (mod -2/50)
by Karl Sjödahl (Dunceor) (dunceor@gmail.com) on Thu Sep 13 05:24:23 2007 (GMT)
  This is very unfortunate that it has happend because this will only create more hostility between GPL and BSD people. How ever, if the GPL people can't understand that taking code and making it unuseable for us then so be it. Hopefully they will come to their senses and it will be sorten out.
  [ Show thread ] [ Reply to this comment ] [ Mod Up ] [ Mod Down ]

  Re: Theo de Raadt on Relicensing BSD Code (mod -1/45)
by Anonymous Coward (81.11.148.226) on Thu Sep 13 07:58:13 2007 (GMT)
  I'm just wondering here. Would it be legal for me to make changes to a piece of BSD licenced code, create a diff, and then distribute this diff under the GPL? I have absolutely no desire to do so, I don't like the GPL, but I am curious.
  [ Show thread ] [ Reply to this comment ] [ Mod Up ] [ Mod Down ]

  Why is this such a problem now? (mod -5/45)
by Chas (147.154.235.53) on Thu Sep 13 14:41:39 2007 (GMT)
 

There is a great deal of BSD-licensed code in the Linux kernel. IIRC, a credit to the Regents of the University of California appears in Linux's dmesg. AFAIK, the vast majority of BSD code in the Linux kernel is properly attributed and the legal requirements for licensing have been met and are intact.

So why is it that these few developers can't resist the urge to scribble all over the license for the code that they have appropriated? What process is now breaking down that heretofore has worked so well?

This does have the scent of a vendetta, but Theo appears ready to go to court over the issue, so I would wager that a judge would find the infraction to be real.

I do wish that sharing was easier between the GPL and BSD camps. There should be a /bsd-gpl (tainted) kernel in OpenBSD that has additional support for devices that only have GPL drivers or other GPL kernel features.

This scorched earth policy between the camps forces far too much reinvention of the wheel. It's not productive.

  [ Show thread ] [ Reply to this comment ] [ Mod Up ] [ Mod Down ]

  Re: Theo de Raadt on Relicensing BSD Code (mod 9/53)
by Clay Dowling (12.37.120.99) (clay@lazarusid.com) on Thu Sep 13 15:00:14 2007 (GMT)
http://www.lazarusid.com
  It is unfortunate that the Linux wifi developers have decided that their political agenda is more important than intellectual honesty. Open source works because we all cooperate to make better software. Getting credit for the work we do is a big incentive for people to contribute their code.

I urge the Linux wireless developers to consider how well they would like having their own work stripped of its license and their own credits for writing it removed. It's not a nice thing to do, and it is damaging to the community. Honor the work of others as you would like your own work honored.
  [ Show thread ] [ Reply to this comment ] [ Mod Up ] [ Mod Down ]

  Re: Theo de Raadt on Relicensing BSD Code (mod -3/43)
by Rich (195.212.199.56) on Fri Sep 14 15:47:20 2007 (GMT)
  I sort-of agree with Clay.

I for one don't understand why, after all these years of banging the "free" drum, there are certain Linux developers who seem to simply not care any more. I'm not just referring to this latest incident. There's also all the nonsense with blobs.

They seem to be more and more accepting of cobbling together whatever they can get their hands on regardless of the consequences, just to get something working. They seem to have no pride in their work, or maybe they lack ability (though I'm sure many don't). I don't know.

And what do they get for their troubles? They may (sometimes) get a quick fix, but 9 times out of ten it's a very dirty, half-baked fix as well, which (of course) never gets cleaned up. They are backing themselves into several corners and the whole thing seems incredibly short-sighted.

Collectively, they are doing neither themselves or anyone else any favours at all.
  [ Show thread ] [ Reply to this comment ] [ Mod Up ] [ Mod Down ]

  Re: Theo de Raadt on Relicensing BSD Code (mod -3/41)
by Anonymous Coward (216.68.198.57) on Sat Sep 15 02:09:48 2007 (GMT)
  OSS competition is rough at all levels, expect and demand proactive measures, nothing new.

The OpenBSD team is thankfully a leader with proactive measures for BSD OSS. I'm starting to build my IT legal knowledge.

IANAL, IANetc, but trademark law was used by Redhat lawyers with Enterprise Linux to ~stifle CentOS, a RHEL clone, through Redhat notices or references. I'm open to interpretation on the RHEL and CentOS matter, but is BSD code hampered under trademark law as well, and under what constraints? Sure would be nice to have a FAQ FGA list for many of these matters. More legal work ahead, grr, teeth pulling, and slows down my IT learning.

BSD code might need its own legal eagles, like the FSF, something that OpenBSD is doing thankfully. However, legal matters seems to be a dedicated fight, much like coding is. I just hope BSD code gets it legal representation it deserves. I am uncertain how much the FSF protects BSD, perhaps I'll research the FSF more.

Any comments on the above, I'd be interested in.

Peace all.
  [ Show thread ] [ Reply to this comment ] [ Mod Up ] [ Mod Down ]

  Re: Theo de Raadt on Relicensing BSD Code (mod -8/38)
by Anonymous Coward (193.200.150.167) on Mon Sep 17 11:04:11 2007 (GMT)
  "Fraudulent Software Foundation" anyone?
  [ Show thread ] [ Reply to this comment ] [ Mod Up ] [ Mod Down ]

  Re: Theo de Raadt on Relicensing BSD Code (mod 3/25)
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  Re: Theo de Raadt on Relicensing BSD Code (mod 3/21)
by jeuxbanat (178.62.31.125) (admin@al3ab.com) on Fri Aug 26 23:27:38 2016 (GMT)
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  Re: Theo de Raadt on Relicensing BSD Code (mod 0/14)
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  Re: Theo de Raadt on Relicensing BSD Code (mod 0/0)
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