Theo de Raadt On Relicensing BSD Code

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:

[ak3ldama]

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:

Reyk can take them to court over this, but he must do it before the year 2047.

didn't openbsd do the same thing in reverse?

[Anonymous Coward]

I seem to recall a recent incident where the OpenBSD team was caught doing something similar. That they're reacting like scalded cats now seems to be in slightly poor taste, to put it mildly.

Its been done for over 10 years (GPL grabs) !

[Anonymous Coward]

Its been done for over 10 years (GPL grabs of BSD style code).

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.

Re:Sure, but

[Anonymous Coward]

They also removed the original author's copyright notice, which is wrong, no matter what you do with the license.

This is just shit Theo

[crush]

Making blanket statements about "the Linux guys" or "Linux" is so fucking inaccurate and stupid. The patch was carried in NO MAJOR GNU/LINUX DISTRO. Got that?! I'll put in bold and emphasis for you below so that your brain has a chance to absorb the point:
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.

Re:didn't openbsd do the same thing in reverse?

[teknopurge]

Your comment is useless and trollesque without a link.

Re:Sure, but

[B'Trey]

Instead, GPLers strip the license and replace it with a license that they feel is 'better', but incompatible with the BSD.

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.

Not quite right.

[dwheeler]

The article is misleading. You can take a BSD-licensed program, modify it even slightly, and re-release the COMBINED material (original BSD + the additional modifications) under the GPL, as long your combined work obeys BOTH licenses. The legal issue is that the modified text can be under a different copyright license, and the combined work has to obey BOTH licenses. Since the GPL adds more conditions than the BSD license does (generally), in a combined work it's the GPL conditions that end up dominating the set of conditions. The only issue is whether or not the "small change" could be copyrighted; the U.S., at least, has a very low bar of what is copyrightable, so even small changes are likely to be copyrightable.

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.

Re:Still confused

[teknopurge]

The BSD licnese header and author's comments must remain in place. That's all. The only reason to remove it is to pass it off as your own.

Re:Confused

[l4m3z0r]

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.

Re:Still confused

[Rakishi]

Oh shut up you nitwit. I'm starting to get tired of all of you illiterate BSD zealots.

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:A couple more links:

[Anonymous Coward]

The followup comment by Theo [kerneltrap.org] that you mention is in the original linked article, but it's worth posting here in full as it simplifies the issue. In it, Theo states:

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.

Re:irony

[Anonymous Coward]

Except the code wasn't relicensed. The code was legally integrated into GPL code - no ifs, ands, or buts about it.

Re:irony

[jimstapleton]

Sorry, but mods, please read the BSD license before modding parent.

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 3 and 4 can be removed, but clause 1, which is the relevant portion here, is always kept. BSD License [opensource.org]

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[account_deleted]

Comment removed based on user account deletion

Added restrictions

[Per Abrahamsen]

What traditionally has happened when proprietary UNIX'en redistribute modified BSD code is that they include the BSD copyright notice, and then add their own. The users then have to obey both the restrictions imposed by the original copyright, plus the restrictions imposed by the UNIX vendor

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.

Re:BSD okay for Windows but not for Linux?

[w3woody]

It sounded to me that part of the problem was that the BSD copyright notices were stripped out of the code, which is not just obnoxious or just locking away the code, but is illegal and immoral: it removes the notice of who was the original author of the code.

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.

I think Theo is correct

[MenTaLguY]

I think Theo is essentially correct. To the best of my knowledge, the ground rules are:

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.

Re:didn't openbsd do the same thing in reverse?

[thsths]

> really raise serious questions as to OpenBSD's long term viability. Cooler heads need to prevail, and make a commitment to fork the project should its current leadership continue to spiral out of control.

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.

Re:FOSS developers need to learn to be polite!

[Anonymous Coward]

They asked about relicensing, and were told to get stuffed, this was because Reyk doesn't want his code GPLed. The BSD code can just be straight used, it doesn't need relicensed.

Re:Still confused

[fsmunoz]

Isn't one of the tennets of the GPL that when you distribute the code, you must confer the same rights onto the next person that you were given with the code? I would argue that includes the option to use the code under the BSD license rather than the GPL (given that GPL is more restrictive). If you fail to include the option to license under BSD in your distribution, you are violating the spirit if not the letter of the GPL by removing freedoms which you previously had been granted.

Er, that would basically mean that dual-licensed code can't be part of BSD "core", since using the same "you should give the choice to the next developer" logic would mean that anyone who touches it must also present the GPL as an option, thereby making it impossible to use for any proprietary development. Since dual-licensed code isn't considered as purely GPL code in terms of inclusion the OpenBSD - amongst others - I assume that they know that redristribution and modifications *can* be made *solely* under the BSD licensed *without* having to offer the GPL as an option to the end user.

Re:didn't openbsd do the same thing in reverse?

[morgan_greywolf]

Agreed. The only thing I'd add is to say this:

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 'Linux developers' didn't violate the law. If anyone did, it was only the patch submitter.

Re:Sure, but

[mazarin5]

They also removed the original author's copyright notice, which is wrong, no matter what you do with the license.

I would like to point out that the they in question was in fact the author of the same code.

Re:Confused

[l4m3z0r]

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:didn't openbsd do the same thing in reverse?

[IgnoramusMaximus]

Yes, because there is only one distro of linux out there...

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:Confused

[phliar]

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.

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

But you must distribute the source as dual license unless all the authors allow you to relicense the code.

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:Sure, but

[Score Whore]

3) I choose to distribute the driver under GPL. Any other guy can now download the driver from me, modify it, and distribute it under the GPL, because that's the license under which it was licensed to him.

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:

6. Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients' exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License.

The recipient is receiving their license from the original licensor, not from you. When given an option you get to pick your distribution terms. But you don't get to establish new terms as you have no standing to do so. Saying the people who receive it from you can only use the GPL is imposing new terms. That's not a right you have.

Re:Still confused

[Anonymous Coward]

You really don't understand copyright, so quit talking. Stripping a licence is illegal, claiming something is yours when it isn't is illegal, how hard is this for you to grasp? One typically refers to this as plagerism. Microsoft complies with the licence, so they're fine, it's Linux developers claiming to have created the code that's the problem, if you take a book, add your name to the front, and start selling it as your own, you're going to get in trouble, don't you think?

Theo de Raadt vs. Richard Stallman grudge match!

[dwheeler]

Personally, I want to stick Theo and RMS in a cage and see who lasts longest...

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 repository anywhere and never became part of any exported Linux kernel tree. Nonetheless the BSD community exploded in a very public way. It is interesting to compare their public response to this posting with the sort of response they very loudly insisted was their due when they were found to have carried improperly relicensed GPL code in their repository for some time."

Re:Sure, but

[Anonymous Coward]

I believe the person that submitted the patch to the linux driver wasn't the original author of the OpenBSD code, but was the one that stripped the BSD out.

My understanding is that the original author published it dual, and then the linux author stripped out the BSD references.

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[account_deleted]

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Legally the Linux guys are right. Ethically?

[Bruce Perens]

This has previously been discussed on LWN [lwn.net] and I concur with the analysis there. The Linux folks had a legal right to use the GPL in one of two ways:
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 have best been satisfied by making the result under BSD. However, so many of us hate to see folks take our work private in proprietary software that we resist using BSD licensing. So, I can't blame the developers for this one.

Bruce