Contributed by dwc on from the see-reason dept.
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: firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com cc: firstname.lastname@example.org cc: email@example.com 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.
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