"Reyk and I have decided to show something from the private handling of this Atheros copyright violation issue," OpenBSD creator Theo de Raadt began in a posting to the OpenBSD -misc mailing list referring to the recent relicensing of OpenBSD's BSD licensed Atheros driver under the GPL. He noted, "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." Theo went on to explain:
"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."
From: Theo de Raadt [email blocked] 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=drivers/n%20%5Cet/wireless/ath5k_hw.c;h=07ad1278b39037caf68825cabcf9469db059dfc8;hb=everything http://git.kernel.org/?p=linux/kernel/git/linville/wireless-dev.git;a=tree;f=drivers/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 Subject: Re: Derivative Works test Date: Wed, 05 Sep 2007 11:59:06 -0600 From: Theo de Raadt [email blocked] 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.
From: Theo de Raadt [email blocked] Subject: The Atheros story in much fewer words Date: Wed, 12 Sep 2007 20:57:43 -0600 I recognize that writeup about the Atheros / Linux / SFLC story is a bit complex, so I wrote a very simple explanation to someone, and they liked it's clarity so much that they asked me to post it for everyone. Here it is (with a few more changes) ----- starting premise: you can already use the code as it is steps taken: 1. pester developer for a year to get it under another license. - get told no, repeatedly 2. climb over ethical fence 3. remove his license - get caught, look a bit stupid 4. wrap his license with your own - get caught, look really stupid 5. assert copyright under author's license, without original work - get caught, look even more stupid Right now the wireless linux developers -- aided by an entire team of evidently unskilled lawyers -- are at step 5, and we don't know what will happen next. We wait, to see what will happen. Reyk can take them to court over this, but he must do it before the year 2047.
Copyright law
I think Mr. de Raadt has a fine technical point. However, it appears the only likely legal consequence of a derivative work not containing enough new material to have its own independent copyright is that enforcement of any license based on the putative copyright would be void until enough changes had been made to make the additional copyright valid.
Mostly though it seems that the BSD people here are being vindictive about a technicality that the Linux people have already agreed to fix. If the BSD license text is included, what is left to complain about? Is there economic harm being done here? Granted proper attribution, are there any moral rights that are being violated?
Has anyone ever been prosecuted for claiming copyright to immaterial changes? If so half of the publishing industry is in big trouble.
Its not "the BSD people." It
Its not "the BSD people."
It is Theo.
He runs the smear campaign against Linux right now.
It is BSD People.
I, along with many others, stand with Theo on this. He is posting full referenced text to back up what he is saying and people make silly comments like yours. Thanks for not choosing to use BSD, we don't care to waste time with your pointless drivel.
Indeed, those of us that can
Indeed, those of us that can read understand the importance of the law, and how the Linux developers, by ignoring it, are only creating a quagmire from which they will never escape once they get stuck in it.
Linux developers?
So why do people keep saying "The Linux Developers" - are they all spawns of satan now? Most of the Linux developers have nothing to do with this.
I think both sides are
I think both sides are generalizing a bit. "Linux developers" is definatly not the case.
It is a few certain linux developers. None of us BSD developers thing linux developers
are spawns of satan. This issue is about a few people claiming copyright without making
a sigificant contribution in order to change the license. It is about a few cases of
plagiarism, and more ominiously - about the SFLC's apparant support or condoning of this
type of behaviour - Accidents of course happen, and can be corrected (just like when
an OpenBSD developer naiively did the same thing in our tree - the difference being
we removed it immediately.
On the other hand with these particular individuals the publication still seems to be
occuring - copyrights added to a file with nothing changed but formatting and a few variable renames:
http://git.kernel.org/?p=linux/kernel/git/linville/wireless-dev.git;a=bl...
Of course, this continued sorts of problems does make people upset and they tend to generalize overly in their language. The above is akin to if you spent a couple of years
writing a book, then someone "translated" it for you from American english spelling to
British/Canadian and therefore added themselves as an author. Most book authors would
not approve either.
Hehehe (rubbing belly)
I just love a good fight... Theo, you are being underestimated, keep going, or your 15min of fame will be long gone... who dares to even insinuate that you will stop this fight? But don't worry much, Theo, soon Linux will be under our EULA , just another Microporosoft software.
Or people might just use one
Or people might just use one of the saner BSDs, like, you know, the one he was ousted from because they didn't care to waste time with his pointless drivel.
This isn't *BSD vs Linux. It's Theo and a few of his yes-men against the world (as usual).
I agree, theo is just pissed
I agree, theo is just pissed about them calling his developer on his trying to use gpl code in a bsd wireless driver. This was dual licensed and yes the very nature of bsd licensing in and off itself does allow you to remove anything, including the license.
Re: I agree, theo is just pissed
Not true. Read the license again. One of the things explicitly disallowed is changing or removing the license.
First, the code was not dual
First, the code was not dual licensed.
Second, the license expressly prohibits removing the license from the code.
Well, the BSD license is
Well, the BSD license is there: http://madwifi.org/browser/branches/ath5k/ath5k_phy.c -- lines 20 to 35.
This isn't a smear campaign.
This isn't a smear campaign. It's people not standing for others stepping on their rights in mis-guided ways.
He's right though... you
He's right though... you can't just relicense something or add yourself as a copyright holder unless the original copyright holder granted that permission. You have permission to modify and redistribute under the terms of the license, but to not relicense -- and definitely not to hijack the copyright.
If the Linux developers had used a small enough piece of the BSD code to be able to claim fair use, THEN they could slap their own license on it.
The level of re-use is clearly not fair use.
What is there is clearly a derived work. You don't get to relicense or claim copyright to a derived work.
Already fixed.
The code in question was fixed two days ago. This argument is over:
http://git.kernel.org/?p=linux/kernel/git/linville/wireless-dev.git;a=co...
Can everyone shut up now, please?
hey linux fan boy did you
hey linux fan boy did you even read the article???
http://git.kernel.org/?p=linux/kernel/git/linville/wireless-dev.git;a=bl...
what you see at the top is nick and jiri's name on a derivative work -- they may not do that
So what?
So at some time in the near future, someone adds a some quantity of code that everyone agrees is non-trivial (whether its 10 lines or 100) to that file and - BAM! - it'll be a derivative work and the only thing left to complain about will have been completely irrelevated. Lets all just move the fuck on with our lives ...
.... except that in the
.... except that in the meantime -- until such a day -- linville and luis and nick are publishing copyright fruad.... with a group of lawers backing them...... is this the new face of linux -- just like microsoft?
Oh put a sock in it.
Please.
Fraud? I don't think so
Fraud: False and deceptive statement of fact intended to induce another person to rely upon and, in reliance thereof, give up a valuable thing he or she owns or a legal right he or she is entitled to.
The worst possible offense here is claiming joint copyright to a work that may be a few lines short of a derivative work. I can't imagine anyone has ever sufferred legal sanction over that.
IANAL, but....
I don't think that the question is whether something is trivial. Copyright doesn't preserve practical aspects, but rather original expressive elements.
So an example of a non-trivial change that might not be protectable:
Going through the SQL-Ledger codebase and making it all work with use stict; (SQL-Ledger is in Perl, and that task is anything but trivial, but I don't think much in the way of original content would be added)
Of course generally trivial changes might be categorically unprotected.
Except the derivitive work
Except the derivitive work copyright ONLY applies to the derivitive works added to the original. The original copyright owner still owns the rights to the orriginal work.
Maybe a better thing might be to:
put a notice on the top of the file which says something to the effect that:
"Portions may be copyright so-and-so.
So-and-so intends to modify this file and release these changes under the GNU GPL v2. People looking for code under the original BSD license should not rely on this file and should instead obtain the source code from the author below.... This notice will remain unchanged until a decision is made that the work is unambiguously a derivative work under the GNU GPL v2."
IANAL, TINLA, Please talk to your lawyer....
from the linux wireless
from the linux wireless git
1 /*
2 * Copyright (c) 2004-2007 Reyk Floeter
3 * Copyright (c) 2006-2007 Nick Kossifidis
4 * Copyright (c) 2007 Jiri Slaby
5 *
6 * Permission to use, copy, modify, and distribute this software for any
7 * purpose with or without fee is hereby granted, provided that the above
8 * copyright notice and this permission notice appear in all copies.
9 *
10 * THE SOFTWARE IS PROVIDED "AS IS" AND THE AUTHOR DISCLAIMS ALL WARRANTIES
11 * WITH REGARD TO THIS SOFTWARE INCLUDING ALL IMPLIED WARRANTIES OF
12 * MERCHANTABILITY AND FITNESS. IN NO EVENT SHALL THE AUTHOR BE LIABLE FOR
13 * ANY SPECIAL, DIRECT, INDIRECT, OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES
14 * WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER IN AN
15 * ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF
16 * OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THIS SOFTWARE.
17 *
18 */
how did jiri and nick get their names onto a file which reyk wrote 99% of?
It's called Plagarism
It's called Plagiarism - Welcome to Linux!
They may as well just add Linus Torvald's name and everyone else on earth in all BSD code... What's the difference, they've committed plagiarism many times!
RTF-License, it is not "plagarism"
BSD allows relicensing of it's code. That is way msft uses BSD code. If you don't want your code relicensed, don't license it under BSD.
It is amazing to me that BSD advocates are fine with msft re-licensing BSD code, but then they bitch about BSD code put into linux.
BTW: BSD code has been put into linux for that last 10 years. Why all the sudden bitching?
Anonymous (not
Anonymous (not verified)
>BSD allows relicensing of it's code. That is way msft uses BSD code. If you don't want your >code relicensed, don't license it under BSD.
>
>It is amazing to me that BSD advocates are fine with msft re-licensing BSD code, but then >they bitch about BSD code put into linux.
>
>BTW: BSD code has been put into linux for that last 10 years. Why all the sudden bitching?
No, BSD does *NOT* allow relicensing the code, because it's COPYRIGHT. COPYRIGHT does not
allow relicensing the code. read the first line of a BSD license.
Microsoft does *NOT* relicense BSD code - the license remains intact in those source files.
Microsoft *USES* BSD code, as allowed by the license.
Copright law gives you an author the right to restrict all copying, distribution, and modification of a work. The BSD license specifically gives those rights to others under
certain conditions..
Note what's not included? clamining you wrote it. AKA "relicensing" it. That would be
PLAGIARISM.
The bitching is not about the USE it's about PLAGIARISM.
You read it.
BSD does NOT allow relicensing. It allows reuse.
Not at all the same thing.
And the copyright notice expressly prohibits removal of the copyright notice. Doing so violates copyright law.
I agree, which means
that the BSD-license is *not* compatible with the GPL v3 (which requires the ability to relicense any portion of the code under the GPL3). Since the GPL v3 requires that one also apply the same criteria to most dependencies (those falling under the definition of Corresponding Source), this ought to give authors of BSD-licensed code real incentive to register copyrights to their code (so that statutory provisions would apply).
Fortunately for Linux, we are still talking about the GPL v2 which disclaims an intent to do exactly what the GPL 3 does, Hence GPL v2 applications have no problems continuing to use BSD-licensed code.
Microsoft doesnt relicense
Microsoft doesnt relicense BSD code. They relicense their original work and leave the BSD license intact for the original piece of software. Microsoft does follow the requirements of the BSD license.
Short term memory loss
http://www.itwire.com/content/view/11276/1090/
I think to remember that an issue resembling this one was resolved with a lot less of flames back in April. Theo seems to have forgotten his rants about how such matters should be resolved privately, and about how such mistakes happen.
Actually I think he hasn't.
Actually I think he hasn't. Most of this mail was private for a week. and still
the offending code is published:
http://git.kernel.org/?p=linux/kernel/git/linville/wireless-dev.git;a=bl...
When it happened in the OpenBSD tree it was public simultaneously as OpenBSD was notified. It was removed from our tree within hours. - and yes, theo complained that
it would have been polite to ask us privately first.
On the other hand this has been discussed privately for a long time before any word of it went public - when there is no change (see the above link) it was taken public. In your
rush to say theo is an ass you've neglected to check that in fact there have been attempts
to resolve the situation privately - which got nowhere. Then it went public, and still it's being published - follow the link above- or update git from kernel.org.
So to summarize in order:
A OpenBSD developer violates copyright law
B Linux developer bitches publicly
C OpenBSD developer removes offending code
D OpenBSD developer bitches it could have been done nicer..
A Linux developer violates copyright law
B OpenBSD developer bitches privately, gets nowhere, violating publication continues...
C OpenBSD developers wait a while, violating publication continues..
D OpenBSD developer bitches publicly. Screams and acrimony while violating publication continues...
E Violating publication continues... see link above.. while it lasts...
Maybe step F is the SFLC succeeds in generating enough popular support for breaking copyright law that they run the whole linux kernel through indent with different parameters, change a few variable names, and relicense the whole thing under
GPL Version 3 adding their name to each file for their "significant contribution" - It would convienently get rid of Linus's objections to something one of the main SFLC players wrote. Doing it would certainly make for lots of work for lawyers who consult to companies to protect their patents.
It's nice to see that
It's nice to see that commit, but I think Theo's email was talking about the fact that Nick's copyright notice is still in there. Apparently he hasn't made enough creative contribution to the file to be able to claim copyright.
It does seem like an awfully small thing to fight about, but so long as Theo is technically correct, it's probably a good thing to publicly point out exactly what the law says so that both communities will know exactly what the rules are next time a similar situation comes up.
Already Fixed?
I was under the impression that this was the commit that he referenced in the article as being insufficient. To all of you asking why the linux kernel devs can't just put in the BSD copyright... That would put an advertisement clause on the linux kernel and does not comply with the GPL (someone please correct me on this if I'm wrong).
The file in quest has the
The file in quest has the ISC version of the license in it which has no advertisement clause.
Wrong. Reyk's code is under
Wrong. Reyk's code is under an ISC license.
RTF-License, BSD grants that permission.
>>you can't just relicense something or add yourself as a copyright holder unless the original copyright holder granted that permission<<
And when you license something under BSD, you grant everybody that permission.
No, you grant them
No, you grant them permission to "redistribute and use". What's not clear here, troll?
Redistribution and use in source and binary forms, with or without
modification, are permitted provided that the following conditions
are met:
1. Redistributions of source code must retain the above copyright
notice, this list of conditions and the following disclaimer.
2. Redistributions in binary form must reproduce the above copyright
notice, this list of conditions and the following disclaimer in the
documentation and/or other materials provided with the distribution.
Furthermore
The BSD License is a permission grant by the copyright holder authorizing anyone who obtains the software to use it in those ways. Sublicenses don't enter into it (besides it is a nonexclusive license and is hence indivisible). This is why you can't remove the list of conditions.
The BSD License does not prevent you from enforcing your own copyrights over modifications you make to the code, however. Hence "relicensing" or "sublicensing" is not allowed but adding copyrighted elements which you fully control is.
IANAL, but this seems to be incompatible with the GPL3 but not the GPL2. This may mean that any BSD-licensed code in HURD could be in trouble if it is under the GPL3.
Agreed, actually
BTW, I am an avid Linux user, and I think that the Linux kernel developers who made the error made an honest mistake. Let us treat it as such.
Unfortunately, the more I do my own research, the more worried I am about Theo's main complaint-- that the SFLC may be giving out advice that seems questionable to me.
While IANAL, I say so based on my own understanding that it is nearly impossible to sue lawyers for malpractice and so we *all* need to develop a basic understanding of the law in areas which are relevant. Here are specific points I would make:
1) While the BSDL and related licenses clearly do not have the intent to force sharing of code, they clearly *do* have the intent to provide the downstream recipients of the original elements of that code with the rights listed in the license. So Theo is right that you cannot simply wrap the BSDL in the GPL.
This is particularly relevant to the GPL3 because it introduces potential license incompatibilities between BSDL-code and GPL3 code (see section 7 on removing additional permissions *without* asserting copyright).
2) Copyright law seems even in the US holds that nonexclusive licenses are clearly indivisible and do not automatically grant sublicense rights (a sublicense being a new license issued by a licensee). Some BSD-like licenses (like the MIT License) explicitly allow sublicensing the code and in this case, wrapping it in the GPL would be allowed. Otherwise, it seems difficult to make this case. Whether exclusive licenses are divisible is not yet a settle matter of law as far as I can tell (you have the Gardner v. Nike case which suggests that they exclusive licenses are indivisible, but that is the only case I can find).
BTW, Mr Moglen dismisses the above issue without providing any substantive argument against it.
3) Some BSD-like licenses seem to be addressed to all downstream users and do not include the right to sublicense. The ICU licnese, for example, and the X.Org licenses start out "Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files..." and does not specifically state a sublicensing right.
Thus I am not sure that the advice that these can be automatically sublicensed under the GPL is advice that is sound.
For these reasons, I have been suggesting that open source project leaders should seek unbiased legal advice from people outside the community.
copyright to derived work is fine
>> What is there is clearly a derived work. You don't get to relicense or claim copyright to a derived work.
*****
Section 103(a)
The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.
(b)
The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.
*****
You get copyright to the derived work but not to the portions that are already copyrighted (excluding fair use).
IANAL
Goose and gander
I love linux and the GPL has been a cornerstone for open source development. How is it that the linux community can feel OK about trampling others rights when they are so protective of their own licensing scheme?
To call TdRs issue a "fine technical point" is disingenuous.
Either write your own s/w and put it under the license you desire or give the other guy his due.
If there is a licensing conflict created by including the openBSD work in linux distros then DON'T USE IT. Period. Heh heh --- you wouldn't copy MSWindows stuff and wrap a license around it!
I would give the Linux developers some credit
My general feeling is that the Linux developers in question probably got bad advice and did things wrong. I haven't seen any evidence *yet* that they have done anything in bad faith.
I have had to deal with a bunch of related open source development issues. My own thinking is that the line as to where you assert copyright is a very vague one and generally I try to follow the general wishes of the copyright owner.
I have had to deal with people who bitched about me leaving their copyright notices intact. So, you bet, I changed them before a derivatie work existed (however, these changes were all tracked in svn, so one can always go back to the original document licensed to us).
But I suspect that the developers here were acting in good faith based on the legal advice they were given.
BSD License
Why is it okay to take the whole BSD code, distribute it in binary only and not share the source, but its not okay to take it and release it under a GPL license?
In my opinion GPLing the source is better than distributing it in bin only.
Because wrapping the GPL
Because wrapping the GPL around it alters and ultimately limits the original BSD license. Not to mention the ethical and legal ramifications of claiming copyright on another persons work.
The people who release a
The people who release a binary only program including BSD code still have to follow the license by mentioning the BSD copyright in the supporting documentation.
Not your call
Because the license permits you to distribute in binary.
However, it does not permit you to take a software and change its license.
This mean that when we decide to license code so that it is available for ALL no matter if they use it for study or money, you don't get to relicense it so it is ONLY available to GPL-friendly projects. The fact that in your opinion the GPL is superior doesn't give you the right to decide what permissions we grant on our software.
If you are unhappy with the permissions we grant, you can decide to not use our software or you can decide to write your own, but you can't decide to just remove the license and put your own.
Simple answer (IANAL)
Because the BSD License is a grant of copyright permissions by the original author to anyone who comes into posession with the source code. The copyright owner alone is entitled to decide what rights are granted in the absense of a sublicening agreement. The BSD license does not mention sublicenses, and nonexclusive copyright licenses are generally indivisible (and hence non-sublicenseable).
In short, this tramples on the legal rights of the copyright owners of BSD-licensed code, to control the terms under which it is used in the creation of derivative work.
This would be no different than someone taking a GPL v2 codebase and, without getting the author's permission, relicensing it under the GPL3 or Affero GPL, or any of a number of other open source licenses with different legal terms.
My reading of section 7 of the GPL v3 suggests that the GPL v3 requires this option and hence BSD-licensed code cannot be used in such an application.
Theo talks as if he is the
Theo talks as if he is the law, insinuating that the Linux Kernel developers are a
criminal gang (although he limits it to the wireless kernel devs mostly).
Judge Theo would not be a nice fellow for sure.
And these mails - their insulting content - does not win him any sympathy about his goals.
I can only hope that the BSD that is mentioned by Theo will adopt an approach NetBSD uses -
who once stated that they do not think the negative hype and FUD is necessary.
A very good goal and a very earnest attitude, so if you use a BSD, make sure it is NetBSD
and not the one Theo hypes here.
What's Theo's point?
I mean, he is _actively_ trying to block use of BSD code in Linux (under the GPL). Yet he is fine with companies taking the code, burying it in some commercial closed-as-can-be product.
That just does not make sense at all, Theo.