Theo de Raadt On Relicensing BSD Code 613
iBSD 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.'"
A couple more links: (Score:3, Informative)
here's the article on undeadly [undeadly.org] and and here's a synopsis from a misc post [marc.info] An excellent (and apparently sarcastic) quote:
Re:A couple more links: (Score:5, Informative)
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)
steps taken:-----
starting premise:
1. pester developer for a year to get it under another license.
2. climb over ethical fence
3. remove his license
4. wrap his license with your own
5. assert copyright under author's license, without original work
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.
Re:A couple more links: (Score:4, Funny)
Your honor we motion that defendents, if found guilty, should have to apologize and donate 20,000 lines of code to BSD.
didn't openbsd do the same thing in reverse? (Score:3, Informative)
Re: (Score:3, Informative)
Comment removed (Score:4, Informative)
Re:didn't openbsd do the same thing in reverse? (Score:5, Informative)
You can't be serious. Another fork of BSD? I mean there are only 4 widely recognised free forks out there, plus lots more that may not be open, not recognizable as BSD, or not significant...
Actually I have the feeling that you are a secret Linux agent, trying to splinter the forces of BSD. Yes, that would make sense.
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Re:didn't openbsd do the same thing in reverse? (Score:4, Insightful)
Perheaps the BSD crowd should do some soul-searching and ponder why there are four forks, each maintained by a crew which appears to be violently hostile to all the others (not to mention all "outsiders" and "interlopers", such as those building other Unix-like operating systems, say, Linux).
As an aid in your investigation, pay attention to these unseemly feral cries of "Mine! Mine! Mine!" emanating from the land of the supposedly "most free" (to use by anyone for anything, even closed source projects!) license, brought on by this very incident.
All proving to be rather amusing (and quite educational) experience.
Re:didn't openbsd do the same thing in reverse? (Score:4, Insightful)
That might be true in many cases, but IMHO it is a mere reaction which occurs because the GPL crowd is rather frequently confronted with various truly ridiculously hypocritical stances by the BSD proponents. Such as the one we are discussing.
As to why so many forks, the answer is definitely not technical as the distinctions you indicated make no sense. One can have fast and portable OS, just as well as one can have SMP capable and fast one, one with small memory footprint and portability. Etc and so on.
The true answer is different: Towering, Monumental, Gigiantic Egos of the various participants. Egos which have to be kept apart at astronomical distances lest explosions brighter then the Sun were to immediately occur otherwise.
Comment removed (Score:4, Informative)
Re: (Score:3, Informative)
You are confusing distros with forks.
A distro is a particular cocktail of a miriad of available packages. A fork is a parallel code development tree of a particular project or a set of projects.
Linux itself does have forks, maintained for mostly experimental purposes, such as the various private trees of various kernel developers.
Re: (Score:3, Interesting)
Someone just pointed out to me that the BSD license requires its verbatim inclusion in the source distribution, which would then render all source containing the BSD-licanese ... BSD-licensed. So, if the BSD code is included in any other code which must be distributed as source under any other license, say GPL, the licenses would immediately conflict. This problem does not occur with l
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I think Theo has wayyyy overreacted. The only thing anybody did was strip a BSD copyright notice from a wireless driver that was partially dual-licensed and submit it to LKML as a patch. Whether this is immoral or not is not in question, at least in my mind. Whether this is illegal or not is for the lawyers to duke it out, if that's ever going to happen. What is known is that since the patch has not as of yet been included in an official Linux kernel, the 'Li
Re:didn't openbsd do the same thing in reverse? (Score:4, Funny)
There, fixed that for you.
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I think Theo has been very clear. In particular, when he points to Copyright law and to the fact that, in the EU, Eben Moglen needs a tourist guide.
The linuxers just can't take it that they have to respect a different license. And one very different than their moralisitic, religious choice.
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Maybe Theo should follow his own advice.
Stable leadership is not the answer (Score:3, Insightful)
Re:RTFA, dammit (Score:4, Insightful)
Which is exactly the point. Theo is arguing that Linux is not allowed to use GPL for their derived product, thus arguing against the spirit of BSD licenses ( and making no sense).
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Re:didn't openbsd do the same thing in reverse? (Score:4, Insightful)
The developers of, among many other achievements, OpenSSH, have more than an ounce of credibility. Any attempt to marginalize a group that's produced such a vital, omnipresent contribution is an attempt to rewrite history.
We should remember that security is hard and that to produce secure software requires not just the will but also rare ability.
Your other criticisms may be valid, but we should remember who we're talking about here. Security experts are among the most difficult developers to replace. There's a reason that we're talking about OpenBSD on slashdot right now: the viability of the project could have an impact on many people.
Re:didn't openbsd do the same thing in reverse? (Score:5, Funny)
Interesting
http://en.wikipedia.org/wiki/Theo_de_Raadt [wikipedia.org]
vs.
http://en.wikipedia.org/wiki/Richard_Stallman [wikipedia.org]
Theo is younger (39 vs 54) and fitter than Stallman. More aggressive too - Stallman seems like a fat old hippy who'd go into the cage expecting to talk his way out of it. Theo's got a nasty streak and he'd instinctively grasp the rule that two men enter, one man leaves. Life's always been like that for Theo it's just that up to now the violence has been sublimated. Finally, even though he hides it well, the Winged Monkeys of proprietary software would help Theo if things got tough, especially against Stallman.
Theo de Raadt vs. Richard Stallman grudge match! (Score:3, Informative)
Yeah, Theo is younger and fitter, but Stallman has a katana [xkcd.com] in imitation of this xkcd cartoon [xkcd.com] :-).
A little lightening up would be good, frankly.
As noted in LWN [lwn.net], this kerfluffle seems to have been kicked off when "wireless developer Jiri Slaby posted a patch which stripped the ISC and BSD license notices from the source, replacing them with GPLv2 license text. It should be noted that this patch was not accepted into any re
My spider sense is tingling... (Score:3)
Still confused (Score:3, Interesting)
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Re:Still confused (Score:4, Informative)
Re: (Score:2)
1. Redistributions of source code must retain the above copyright
notice, this list of conditions and the following disclaimer.
Therefore, the source code is copyright by Theo and that CANNOT be removed. It is a copyright violation. Furthermore, the new "license" MUST contain the disclaimer at the end of t
Re: (Score:2)
For the last decade+, people have been claiming that the BSD licenses are more free than the GPL, because they effectively place no restrictions on what you can do with the code. Now we're being told that there are restrictions on what you can do with the code.
Actually, you can do anything you want with the compiled code, such as produce a closed-source program and you don't have to distribute the source code to anybody. That's the freedom of the BSD license. However, if you choose to distribute the source code you're required to do so under the BSD license as the license requires you to reproduce the author's copyright notice and the list of conditions.
The Linux guys could have used the source code and released binaries only, and there would be no problems do
Re: (Score:2)
Exactly, and the BSD license gives anybody the *right* to *copy* - with essentially no restriections. If you don't want people to claim your work as their own, don't license it under BSD.
I am also confused about the BSD bitching. BSD doesn't mind msft taking BSD code and releasing it as msft's own code. But the BSD advocates bitch about Linux? WTF?
Re: (Score:2, Informative)
The code was under TWO licenses. GPL and BSD. Someone removed the BSD one because the codes said you can choose either one. Due to likely clarity and to prevent future legal problems (ie: to prevent people from assuming GPL code is under the BSD) they removed the BSD license text.
Re: (Score:3, Interesting)
In this case, it seems that the GPL zealots have failed to comply even with that requirement in their zeal to rebrand the code as GPL.
They didn't failed to comply with the BSD licence because they weren't bound by it but by the GPL, since it was a dual-licensed work with a "you can choose which license applies" wording. And this is really the most important issue here, Theo's interpretation of dual licensed software as a kind of "you must comply with both", and this is what warrants further discussion. Saying that "zealots failed to comply" assumes that a regular BSD licensed software was changed, when this is *not* the case.
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Re:Still confused (Score:4, Informative)
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Anyone who wants to use the BSD code with GPL modifications will have to use it as GPL.
Neither of which applies to this case where the original code was already GPL (via a dual license) and so anyone who wants to use the GPL code with GPL modifications will use it as GPL.
None of this is new to anyone. The complaint is that GPL developers benefit from the hard work of BSD developers without giving back. Of course, that's exactly how the BSD developers
Re:Still confused (Score:4, Insightful)
No it's not irrelevant. The author grants you Copyright. You do not take it. There's a difference. Furthermore, the author was very explicit in his intention in the mailing list. It's very clear for all to see. I'll bet that this would make a reasonable case in any country signataire of the Berne convention. Of course, it will be up to a judge to decide. But if you ever used a lawyer's service, unless a judge is completely detached form reality, a party's intention is always taken into consideration and evem more so when he feels harm has been done to him or because of him.
Forthermore, you can't strip the BSD license. The license says so. The BSD license does not license the license as that would void it (and would be utterly ilogical). The license licenses the code. The license says: "do what you want to this code, but maintain the Copyright and this note." It's not so hard to understand. Yeah, I know...reality sucks. GPL zealots do not like the conundrum this situation poses to their beloved moralisitic philosophy written in stone.
In fact, this would be a very interesting case on Copyright laws and open source development, specifically as it regards the fashion in which these people work (distributed tools, mailing-lists...). I'm actually suspicious that some lawyers in the Linux camp want to take this to court...Maybe that's the root cause of all these US lawyers giving strange advice.
Yet another troll ...sigh!! (Score:4, Insightful)
Yesterday RMS, today Theo, tomorrow Jeff Jones...
Too much trolls on
Nice going, keep it up troll feeders.
Re: (Score:2)
Examples, Religion (I will just follow down one branch).
Monotheistic vs. Polithiestic. It didn't matter if you were Jewish, Christain, or Muslam just as long as we get those Pagan Devils.
Then came.
Christains vs Muslams vs Jewish
Then
Prodistant vs. Catholic
Then
Evangelical vs. Prog
Not again! (Score:3, Insightful)
Its been done for over 10 years (GPL grabs) ! (Score:3, Informative)
i once saw with utter shock that someone took code from Darin Adler nearly 10 years ago
http://en.wikipedia.org/wiki/Darin_Adler [wikipedia.org]
I noticed that I saw his stuff slapped with GPL viral license and then I compared to earlier nearly IDENTICAL source code files where he specifically went out of the way to put the GPL on it.
Darin wanted his code on this one utility module to be 100% free.
I guess the Linux camp has been doing this for over 10 years now. So immorality is nothing new.
Wasn't all the hard work of SCSI in BSD lifted ages and ages ago too?
So sad. I used to respect the GPl until I saw how the zealots will grab anything and call it their own and even claim copyright OWNERSHIP over code not alterred materially other than swapping out the legal license.
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YOU chose what license you to use. don't blame others for abiding by the license YOU chose. If you give people 100% freedom that INCLUDES being able to relicense it, I'm not even sure if copyright law allows 100% freedom Of course the BSD only gives you 99% freedom and that 1% requires that the original copyright statement be left in place.
The license hasn't been changed!!!!! (Score:5, Insightful)
And it is!
The fact that somebody licensed a derivative work under the GPL in no way changes the license on Darin's code. Darin's code is still BSD and always will be, and from now into perpetuity, anybody can use Darin's code however they want, just like he'd intended.
What people can't do is use the derivative work however they want -- like, in a proprietary piece of software. But that's another issue! Some guy started with Darin's code and made something else out of it; let's call that guy "Bob." It's really just Bob's changes to Darin's code that are GPLed.
You see? Nothing the GPL people can do or have done will change the fact that anybody can get Darin's code under the BSD license.
The problem is this damn word "relicensing" we keep using. It implies that the license is somehow changed. It isn't!
Confused (Score:5, Insightful)
Maybe some technical violation occurred in the credits or some such but this just sounds to me like sour grapes because they can't have the changes. They can't have the changes when the source is used in a closed commercial environment, the BSD guys maintain that as ethical so they really don't have any ground to stand on here. Nobody has violated the spirit of the BSD license which is essentially "Here it is, take it and do what you want with it, even if that means incorporating it into a product that makes you millions of dollars and completely closing the software without sharing any modifications back."
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Re:Confused (Score:5, Informative)
You can take BSD code and close it completely under a commercial license, why couldn't you use the GPL instead of a closed commercial license? Why is it unethical to use the GPL but not to use a totalitarian closed license?
Actually they cannot change the source code license. They are required by law to not alter the license. They just arent forced to re-release the source code. Should they decide to release the source code the code as taken from the BSD people is still BSD licensed and can be used under those terms.
Nobody has violated the spirit of the BSD license which is essentially "Here it is, take it and do what you want with it, even if that means incorporating it into a product that makes you millions of dollars and completely closing the software without sharing any modifications back.
He isnt saying they violated the spirit of the license, he is saying they violated the letter of the law by altering the copyright on code without permission or authorization and without making any changes substantial enough to count as derivative work. It doesnt matter if they are GPL people or a corporation that action is illegal and Theo is calling them out on it.
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Nitpick: They are required by license, not law. Do not make the mistake of making license terms equal to law, they are not. Any license term may be declared unconscionable and therefore meaningless. (Not to say that applies in this case...)
Re:Confused (Score:5, Insightful)
The code in question is dual licensed: you can use it either under the BSD license or the GPL. It's your choice. In this case the person chose the GPL (and not BSD).
As good a hacker Theo is, he's not a copyright lawyer. (His digs at Eben Moglen are in extremely poor taste.)
Perhaps now the "BSD is the only free license!!!" zealots will admit that they too want to restrict what others can do with their code. (There is no "100% freedom".)
The lesson from all this is: do NOT pick a license based on politics, religion, and fashion. Read the license (or talk to a copyright lawyer) and pick the license that works the way you want it to -- not because RMS or Theo or Joe Blow says it is the only true and FREE!!! license. (You'd think hackers would be able to deal with the law better than this -- with both software and the law, what is written down is the only thing that matters. Your intentions, what you really meant, have nothing to do with anything once it's written down.)
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The code in question is dual licensed: you can use it either under the BSD license or the GPL. It's your choice. In this case the person chose the GPL (and not BSD).
SIGH... You are right you can USE it under either license. But you must distribute the source as dual license unless all the authors allow you to relicense the code.
This is why Theo is harping so much on this because many people fail to understand this very basic concept in copyright law...
Re:Confused (Score:4, Informative)
You're being disingenuous. In the context of this discussion we're talking about modification and redistribution. Neither the GPL or the BSD license say anything about mere use of a program.
On what basis do you do you say that
Remember that this is the law, and "but that's not what I meant!" counts for nothing; only what's written down matters. In this case, if I see "This code is dual-licensed A or B, your choice" then that's exactly what it means: on my derivative work I get to decide if I want to use A or B (or retain a dual license). If you mean "all derivative works must also be dual licensed" then say that.
Theo is not a copyright lawyer and it's clear that neither are you. (But then again, neither am I.)
Re:Confused (Score:4, Insightful)
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Unfortunately, a lot of people seem to be mistaken about the facts.
Legally the Linux guys are right. Ethically? (Score:3, Informative)
1.) In making any additions to the overall work that they wished, which would put the combined work under the GPL and
2.) Even if they didn't have #1, the work was dual-licensed with the GPL by a previous author before the BSD folks worked on it.
That said, was it the right thing to do? Maybe not. Having taken that work from BSD, the spirit of cooperation might ha
This is just shit Theo (Score:4, Informative)
NO GNU/LINUX DISTROS CARRIED THE PATCH No GNU/Linux distros carried the patch.
Now, please, shut the fuck up.
Sincerely,
A happy OpenBSD user.
FOSS developers need to learn to be polite! (Score:5, Insightful)
They say that it's often easier to get forgiveness than permission. This is absolutely not the case in the FOSS community. Yes, Theo is a hot-head, and he's clearly over-reacting. But at the same time, some Linux contributor didn't think very hard about the wishes of the original author of the code they borrowed. They just took it. In the FOSS community, we're not about copyright. We're about ethical sharing of ideas and the rights of both software developers and software users.
How long could it have taken to ask? "May I use your code?" "May I alter the license on your code?" "If not, is there some compromise we can reach?"
Learn some manners!
Re:FOSS developers need to learn to be polite! (Score:5, Insightful)
And here is some raw data for you from actual Real World (TM) experience. At one Fortune 500 former employer of mine, code got released under a variety of licenses, including proprietary, BSD, and GPL, as fit the need of the situation. BSD was the license of choice for "fire and forget" situations, where the company wanted the code out there (working example code in an application note, for instance) but didn't want to be a long-term maintainer. One company lawyer said, and I'm quoting precisely: "Don't worry, a free version will always be available. Somebody somewhere will slap a GPL on it within 7 seconds of release." So you see, some people chose the BSD when they actively *want* the code to be forked under the GPL.
Compatibility (Score:2)
Some have suggested that the SFLC was formed to avoid smearing the FSF with dirt whenever the SFLC does something risky.
Cool, the FSF has a 'black-ops' section. I wonder what kind of training they get.
On a more serious note, IIRC the BSD-style licenses have a section that says that copyright notices have to be kept in tact. The GPL states that the receiver of the code should have the freedom to modify it, however they wish. This sounds contradictory to me, could someone with more experience please clarify this.
As I recall a rapid summary goes like this (Score:5, Funny)
2) The Linux guys are technically in the right but still taking dual licensed GPL/BSD code and locking it up is a pretty shitty thing to do.
3) Hot heads on both sides have managed to turn what should have been a quiet chat about a moderate, considered approach and with the magic described most eloquently as the PA Greater Internet Fuckwad Theory ensured that relations remain as hostile as possible.
The only conclusion can be that the idiots on both sides (Theo included) actually work for Microsoft and are puppets dancing to the compelling dark tunes of their evil and cunning masters.
The end.
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Except my understanding is that
The first case seems to be ok. Not the nicest thing to do, but perfectly legally legit. The second case I think is wrong. The license says you can't remove it, and they did. Plus the author is unwilling to additionally license it to them under GPL.
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1) The BSD licensed guys are pissed because someone took some code and locked them out of it, despite being rabidly pro the freedom to do exactly this.
WRONG!
THE BSD LICENSE CANNOT BE REMOVED!!!!
You can do what you want with the source code, PROVIDED you leave the BSD license in place.
The issue is when someone wraps the code, with the BSD license, in a GPL or other incompatible license.
Also, IMO, but my understanding is that copyright law trumps all. The BSD license does not dissolve the copyright.
Not quite right. (Score:5, Informative)
Certainly it is NOT okay to remove the copyright notices from BSD material, as long as there's something left in the file that's covered by the BSD license. So, don't do that. But you CAN take a BSD work, combine it with other works, and have the final result as essentially GPL'ed or proprietary. My FLOSS license slide [dwheeler.com] even helps you figure out when you can do that, and when you can't.
But that only covers the legal issues. If there's an existing project that releases something under an OSS license, it's usually better to continue to use their license than to fork off another project under a new license, especially if you're not making many changes. For a lot of reasons.
LWN's article "Relicensing: what's legal and what's right" [lwn.net] is worth a look.
BSD okay for Windows but not for Linux? (Score:2)
Re:BSD okay for Windows but not for Linux? (Score:5, Informative)
It also sounds obnoxious to take someone's code but to resubmit the changes and bug fixes under a more restrictive license--just as it would be obnoxious for a private company to submit bug fixes but to say "in order to distribute our changes you will have to license the code from us for a grand a year." But to my mind it's just that: obnoxious.
Legality or morality? (Score:2)
In one of the previous discussions a helpful poster quoted Theo saying that he thought the relicensing was a moral issue - ie that Linux devs had taken code and made it 'less free''. This is a view I can appreciate, as FLOSS developers should be pooling efforts as much as possible. but the spirit I understand. I think it was more of a "Hey guys, you're meant to be on our side! We can't use this code anymore!". Of course, I find it hard to reconcile with the BSD license saying 'do what you want, just credit
How can BSD code be made "less free" ? (Score:2)
The code is still in your BSD project. It still has the same license. How is it any less free?
To me, the entire arguemnt stinks of msft anti-GPL fud.
I think Theo is correct (Score:5, Informative)
1. Don't touch the license header unless you make substantive changes
2. If you make substantive changes, you may amend the license header to add your copyright (but not remove existing copyrights) under the same license
3. If you make substantive changes and insist on licensing those changes under a different (but compatible!) license to the original, you may add a new license header above the existing one with your copyright (without modifying the existing header)
The initial problem was that the original license header was replaced entirely, even though no substantial changes had been made. The original license header has now been restored, but there is still an issue with a new copyright declaration having been added in the absence of substantive changes.
GPL avoids the "stupid tax" (Score:5, Insightful)
Consider the "stupid tax". This is the "tax" you must pay if you take BSD code, change it, and keep the changes to yourself: every time the BSD project releases a new update, you will need to sync up your custom changes to the official project. The time and effort this requires is the "stupid tax" you are paying for being "stupid" (i.e. not contributing your changes back to the project).
The hope is that after a while, companies that have been paying the stupid tax will say "this is stupid" and contribute their changes to the main project. But with a GPL fork this just won't happen.
Any time the BSD project releases an update, someone will merge the changes in to the GPL fork. And if you contribute changes to the GPL fork, of course they are in every release and you don't need to do anything. So there is no real pressure on features added to the GPL project.
With no GPL fork, you must choose between sharing with the BSD project, or "paying the stupid tax". With a GPL fork, you have a way to avoid the stupid tax and share with others, yet deny the changes to the BSD project. (If you are doing proprietary things with the BSD project, you will not of course have this option.)
And of course, it must be maddening for the BSD project guys to see the patches going in to the GPL project and know that they can't use them. If the GPL project gets a new feature that's a good idea, they must re-code the feature, just because of an incompatible license. (That's why I licensed my lf [sourceforge.net] utility under BSD; I'm hoping it will become a standard part of the userland in all *NIX someday, and the thought of the BSD guys having to re-do all my work just made me sad.)
steveha
deRaad: debugging is "unsubstantial"? (Score:3, Interesting)
OK, fine. That's one opinion, particularly valid from the PoV of a code-writer. But the PoV of a code-reader/user is very different: either the code crashes or it does not. Any change, even trivial in terms of creative effort, has enormous impact on the value of the work.
Or put another way, deRaad doesn't think debugging has enough value to be granted the rights of creating a derivative work.
I might agree adding a comma or changing a word on page XX in a novel does NOT create a derivative work. However, code is very fussy and utilitairian. Unless the code will run _exactly_ as-is, any mod is a derivative work.
Ethical Vs legal issues (Score:3, Insightful)
If you're supporting GPL and hence software freedom, you must respect other's freedom too. There is nothing like my way of freedom is bigger than your freedom.
It *might* be ok for a corporation to lock their modifications under lock-n-key, but it's certainly NOT ok for software freedom torch bearers to do the same AND thump their chest about supporting freedom of software. Respect given is respect got! There are no two ways about it.
What was done might not be illegal (I don't know!), but it was definitely abusive and obnoxious. You can't claim the moral high ground after doing the same thing as the people you denounce. Hell even everybody's favorite enemy Microsoft didn't change the copyright on BSD derived software they use... ftp.exe still contains the BSD license.
Think again!
Sure, but (Score:4, Insightful)
Instead, GPLers strip the license and replace it with a license that they feel is 'better', but incompatible with the BSD. If they had kept it BSD, they could use it with the GPL, and the BSD folks could still use any improvements made.
But again, no respect for the license. Following the letter of the law, true, but not the spirit. Geez, where have I heard that before
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I would like to point out that the they in question was in fact the author of the same code.
Re:Sure, but (Score:4, Interesting)
Re:Sure, but (Score:4, Insightful)
Some was, some wasn't. Jiri changed both. Regardless it's a moot point because he isn't the owner of the code, he cannot dictate the terms to the code. What he can do is choose which terms he wants to distribute under, but he cannot pass that code along and set the terms for the people he passes it to.
Before you reply, note that I'm talking about code that Jiri didn't write here. Code that he doesn't have any standing to set the terms on.
IANAL, but I actually agree with Theo (Score:4, Interesting)
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.
Re:Sure, but (Score:4, Insightful)
This whole "controversy" makes absolutely no sense to me. Anyone can take BSD code, change it however they desire, and they don't have to give anything back if they don't want to. That's the whole *point* of the BSD license. The altered code can then be used in a closed source proprietary product if desired.
If a developer would like to make changes to BSD software but wants *their* contribution to be GPLed, more power to them.
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Some versions of the BSD license have one requirement which GPL does not: an advertisment clause. That is any "advertisment" of the software (or reference to the software in literature) must mention "University of California, Berkeley and its contributors". N
IANAL, but I am pretty sure you are wrong (Score:3, Interesting)
In the BSDL, you have to reproduce the license on the code, include the copyright notice, the disclaimer of warranty, and optionally a couple of other clauses (non-endorsement and/or advertising).
You can still use the code. You can still release the code.
The argument is when one may add additional restrictions to the code that is
Re:Sure, but (Score:5, Informative)
Not really true. The issue is with software that is dual licensed - released under both BSD and GPL. The included license file says that the software may be distributed under either license at the users choice. The Linux developers chose to release it under the GPL, as they had every right to do. The problem is that they did not include the BSD license with their released code. Theo says that's a violation - they can not change the license in any way but must retain it exactly as the author released it. This leads to an absurd situation - both license, which are incompatible with one another, are simultaneously in effect. Note that the question of legality is orthogonal to the issue of the absurdity. Theo may very well be right, but so far I've seen no legal experts make the claim, nor have I seen Theo cite anything other than his own interpretation of the law to back up his claim.
I think the solution for coders who wish to release their code under both license is to provide two separate downloads - one with the BSD license, one with the GPL license - but that doesn't help here.
I believe that there was an issue with some code that was only BSD licensed being released under the GPL, and the kernel developers quickly acknowledged and corrected their error. What's left is the issue of dual licensed code, and this is a matter of legal interpretation, not disrespect of an author's intentions or intended copyright violation. The code being released under the GPL is modified code that was previously released under the GPL, so it's difficult to claim that the developers are violating the author's wishes by releasing their modifications of the original under the GPL.
Added restrictions (Score:3, Informative)
The "correct" way for the Linux hackers would be to do the same, include the original dual license text, but make a clear notice that the derived work can only be redistributed under the GPL.
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Read that and keep reading it until you can see the problem there.
(Hint: the license says what terms you can use to distribute. It doesn't give you the right to set the terms for the people downstream from you.)
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Neither the BSD license or the GPL license give you the right to grant licenses. The only person granting licenses on the code is the person who owns the code. Note this section of the GPL:
Re:Sure, but (Score:5, Insightful)
But, you see, the linuxers just know that, for all practical purposes, that would void the GPL license. And they can't tolerate that. Because they like to live free inside the cardboard box Stallman made for them. The problem is, the BSDL is a superset. Think outside the box.
This is what Reyk said:
I used to cooperate with the people working on the
madwifi port of "OpenHAL"; we exchanged ideas, bug fixes, and small
code snippets. They sent me some bug reports and I also looked at
their changes and reported some functional problems. This was possible
because they kept the license in place.
But now the Linux code is almost ready and somebody wants to cancel
any options to cooperate by locking me out with a prepended GPL and an
invalid copyright on top of it.(...)
I also strongly disagree with the
concept of adding a new copyright and/or a GPL license on top of it -
it is still a derived work and a few stylistic changes, some code
shuffling, and some bug fixes don't allow to change the copyright.
He is very explicit and all the points to which he alludes to have technical backing in Copyright law (IANAL BTW): no substantial changes; the concept of derived work; the concept that the work was publicly displayed under a Copyright modification; and the fact that the license was removed against his will.
What are the linux developers to do? Well, they could tweak the code to the point that there is substantial change (which would probably be stupid, as you are just adding bloat). Or, they could maintain the original license. Which would void the GPL for the parties that are interested in GPL software, except for those that take GPL software and close it, reselling it under a proprietary license (such as MySQL). It might be unfortunate (for the Linux camp) that Reyk released it under a dual-license. But it is so, and there's nothing the GPL camp can do about it.
The SFLC lawyers are probably silent because the just know that the Linux developers would probably get cremated in court. And Theo warned that this case may not be based in the US (ever so lax in international treaties), but in the EU. It's incredible, but it seems people are sticking their heads in the sand.
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Huh? If that's indeed the case, then Theo definitely has no legitimate beef. I haven't seen this claim anywhere. In fact, I haven't heard the author of the driver code weigh in at all. Do you have a pointer?
You are free to continue using code derived from the original BSD licensed works under the terms of the BSD license, but the newly released work, from the original author,
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As far as I can tell, as long as the copyright notices and attributions are all intact, you're honoring the BSD license. The GPL people are at least letting BSD people use the code improvements as GPL, whereas
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Re:Sure, but (Score:4, Insightful)
This makes no sense to me.
If you release your stuff under a license that allows something, doing so, by definition, makes that something "right".
If you do believe that some things that can be done with your code are not "right", then you release under a license that specifically forbids those things.
In other words the BSD people want to have the cake and eat it too, choosing arbitrarily and willy-nilly which things they believe are "right" to do with their code and which are not, without actually changing the terms of the license! They want the BSD license to be preceived as "most free" while at the same time putting arbitrary (and uwritten!) restrictions on those whom they dislike, such as us, the GPL "communists".
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Because then the GPL advocates be satisfied and wouldn't feel compelled to break the law and remove the current license from the code? Sort of like saying "We won't force you to do anything as long as you do what we want."
What clause in the BSD license do you think allows you to remove that license?
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Beyond that, after listening to the more esoteric arguments being proposed, what I've learned from this is that BSD proponents only support their own licensing scheme when it is used by corporations to close the code.
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Second, Jiri cannot decide which licenses software that he doesn't own is distributed under. In this case he can decide which license he wants to use for his act of distributing, but he cannot set the terms on code he doesn't own.
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Sorry, but the BSD License SPECIFICALLY states that the copyright license/notice and diclaimers must be kept with any binary or source redistribution of the code.
Now the code in question was dual licensed, with "either" being the join, not "both", so they may theoretically be able to chuck the BSD license. However, straight BSD does not allow removal of the license like you suggest.
Oh, and the BSD License for the curious. Occasionally clause
Incident provides insight into dev character ... (Score:4, Insightful)
I think you are missing the point, it is one of ethics not legality. The FOSS community is built upon the notion of giving back. An ethical FOSS developer would take a BSD driver, improve it, and release his/her changes under the original license. This new work is usable in Linux and he has given back to the community that the improved driver is derived from. However in this case the developers chose to engage in zealotry, to violate the FOSS spirit of giving back, and that is very insightful into their character.
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While you can certainly pin many attributes on Theo, I didn't think Multiple Personality Disorder was one of them
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Off topic - but perky (Score:3, Interesting)
Law is understandable. It really is just common sense. That's why the jury is so important. When you think of the law, try to imagine what 10 average people would think, not what some ambulance chasing, paper pushing, pencil necked, money grubbing lawyer would think. Average people want the law to work so they can go on with their lives and not feel bad about their decision, average
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If you're a company doing due diligence, you don't consult an american legal expert for the niceties of European IP law, especially if you've been warned that the guy's advice sucks. Even if he's right, there's no way he can go to bat for you in court.
Re:this is stupid! (Score:5, Insightful)
That's the "unethical" part that Theo talks about. The "illegal" parts are:
1. removing the BSD license notice altogether, and
2. making it look like the authors of the linux derivative work are the original authors.
In 1, yes, doing so doesn't change how the now-dual-licensed code is distributed, since the GPL's distribution terms supercede the BSD's. But it does change a legal document, and that is important.
In 2, this is a bigger deal, since derivative works are subject to different copyright law, particularly given the venue.
The thing is-- this stuff is easy to fix. Treat it like a bug, be an adult, and amend the broken files. No one wants to keep BSD drivers out of Linux, and the real meat of the discussion is: is it good for the F/OSS community to be taking code in a manner that is, at the very least, offensive to some people? You're absolutely right when you say that it's perfectly legal to slap a GPL license onto BSD code, but why do it other than to prove you can? Does anyone here really think that Atheros gives a shit about a BSD driver for their chipsets? And even if they do-- who cares? If Atheros wants to replace their shitty drivers with something better, so be it!
F/OSS depends on cooperation to survive. If you want real software freedom, you can't be petty. The whole idea is of giving, not taking.
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It would only be stupid if you were unhappy about your code being used in a commercial project. In that case, you would have chosen the wrong licence.
If however you were happy with the concept, then it wouldn't be stupid at all.
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someone who writes code under BSD licence knows that this could be used for commercial projects without returning ANY source at all. one could argue that thus wirting code under BSD licence is stupid in the first place. but why do these people complain when someone uses it under GPL if they would even allow use it for bloody comercial, binary only products? this is stupid hypcriticism...
It's quite simple, really. The BSD license allows you to distribute your compiled code in any manner you choose. However, if you choose to distribute the source code, you must reproduce the author's copyright and the list of conditions. If you're offended by GPL violations, then you should be just as offended by a BSD license violation regardless of whether you find the license appropriate for your own use.
People who choose the BSD license grant the freedom to do whatever you want with the binary, but i