[News] BSD vs Linux/GPL Developer Dispute Not Over Yet - Linux

This is a discussion on [News] BSD vs Linux/GPL Developer Dispute Not Over Yet - Linux ; Atheros Driver Developments http://kerneltrap.org/OpenBSD/Athero...r_Developments Relicensing: what's legal and what's right ,----[ Quote ] | In the end, distributing versions of the ath5k driver under GPLv2 (with the | requisite copyright attributions maintained) is something which the Linux | community is ...

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Thread: [News] BSD vs Linux/GPL Developer Dispute Not Over Yet

  1. [News] BSD vs Linux/GPL Developer Dispute Not Over Yet

    Atheros Driver Developments


    Relicensing: what's legal and what's right

    ,----[ Quote ]
    | In the end, distributing versions of the ath5k driver under GPLv2 (with the
    | requisite copyright attributions maintained) is something which the Linux
    | community is entitled to do. Anybody who does not like more restrictive
    | conditions being applied to BSD-licensed code is well advised to avoid using
    | the BSD license to begin with. But the legal ability to do something does not
    | make that something the right course of action. Only the developers who have
    | worked on the ath5k driver have the right to decide which license they will
    | use, but it's worth saying that allowing the BSD community to make use of
    | work done on the ath5k driver would be a friendly gesture and an
    | acknowledgment of the value of the code we got from them. The benefits from
    | such an act would likely outweigh any cost associated with allowing unwanted
    | proprietary use of the code which has been added to this driver.


    GPL-BSD stoush: de Raadt hints at legal action


    He seems to forget that BSD folks nicked some drivers from Linux as well...


    Open Source coders caught stealing Open Source code


  2. Re: [News] BSD vs Linux/GPL Developer Dispute Not Over Yet

    Verily I say unto thee, that Roy Schestowitz spake thusly:
    > Atheros Driver Developments

    > GPL-BSD stoush: de Raadt hints at legal action
    > http://www.itwire.com/content/view/14447/1091/
    > He seems to forget that BSD folks nicked some drivers from Linux as
    > well...

    He also seems to be ignoring the wishes of the author, who explicitly
    dual-licensed that code BSD/GPL, and stated that anyone may choose to
    exclude either one of those two licenses.

    > Related:
    > Open Source coders caught stealing Open Source code
    > http://www.theinquirer.net/default.aspx?article=38746

    "Because of a few GPL issues you are willing to use very strong words,
    disrupting the efforts of one guy who is trying to do things for the BSD
    community." - Theo the Rat.



    | "OOXML is a superb standard"
    | - GNU/Linux traitor, Miguel de Icaza.

    Fedora release 7 (Moonshine) on sky, running kernel
    13:37:02 up 36 days, 12:31, 2 users, load average: 0.05, 0.19, 0.18

  3. Re: [News] BSD vs Linux/GPL Developer Dispute Not Over Yet

    "[H]omer" wrote:
    > "Because of a few GPL issues you are willing to use very strong words,
    > disrupting the efforts of one guy who is trying to do things for the BSD
    > community." - Theo the Rat.
    > Hypocrite.

    The context is this, you [M]oron:

    From: Theo de Raadt
    Subject: Re: OpenBSD bcw: Possible GPL license violation issues
    Date: 2007-04-05 17:25:19 GMT

    > On Thursday 05 April 2007 18:48, Theo de Raadt wrote:
    > > I personally believe that you made a very poor choice by publically
    > > attacking a developer who did not even have working code yet. You chose

    > The GPL is not about "working code", it's about distribution.
    > And you did distribute our code under the BSD license, which is
    > a GPL violation.

    Marcus made a mistake, and instead of privately mailing him you told a
    bunch of mailing lists. Your mails make it clear that you don't
    believe his process was in good faith. Fine -- then we cannot believe
    that your very public posting was in good faith, either.

    > I think this is dangerous, because the code is tainted and it
    > may even taint other codebases. For example if someone working
    > for opensolaris choses to import bcw into solaris, as he's rightfully
    > got the opinion that bcw is BSD licensed.

    Yes, dangerous mistakes happen all the time. But we live in a world
    of source code, where mistakes can be undone.

    Now that mistake is undone. In the way you wanted; was there every any
    doubt in ANYONE'S MIND that Marcus would approach this any other way?

    Or are you completely and totally deluded, and beyond that --
    completely unaware of how human beings react?

    > I offered several ways to solve the issue that would help bcw development
    > (offering to relicense my code).

    Isn't that a bit like offering a kibble to a cat after you've kicked it?

    > If Marcus gave up that's a pity. But that's his choice. I respect that,
    > although I hoped to get a better solution.

    KICK KICK KICK KICK. I wish the cat still wants to come over and purr
    near me.

    There's thousands of people who write code, and try to be nice to the
    people who write that code. When license problems happen, they try to
    nicely get problems resolved privately first. If problems cannot be
    nicely resolved, then they do them in a more public fashion.

    There is a large culture of GPL proponents who privately deal with
    companies to get things resolved, and then privately use legal force,
    and then maybe, in the end, use public force.

    But when dealing with a parallel open source effort, you went right to
    the jugular. I bet you deal nicer with companies. What is the matter
    with you? Are you not human?

    But you, sir, are not in the group of people who try to nicely get
    problems results. You publically kick people who make mistakes.

    Maybe you don't feel guilty about what has happened here, but you no
    longer have my respect. You don't understand how a human being might
    react to being kicked in public, when a small private word might have
    been better.

    And as for current dispute...

    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:

    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=07ad1278b39037caf68825cabcf9469db059d fc8;hb=everything

    http://git.kernel.org/?p=linux/kernel/git/linville/wireless-dev.git;a=tree;f=drivers/n%20\et/wireless;h=2d6caeba0924c34b9539960b9ab568ab3d193fc 8;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]


    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


    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:


    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.


    "The revolution might take significantly longer than anticipated."

    -- The GNU Monk Harald Welte

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