Forgot your password?
typodupeerror
Programming Government Operating Systems Politics BSD IT Technology

Software Freedom Law Center vs Theo de Raadt 464

Posted by Zonk
from the steady-now-steady dept.
An anonymous reader writes "In a recent public posting to the Linux Kernel mailing list the founder of the Software Freedom Law Center, Eben Moglen, lashed back at OpenBSD creator Theo de Raadt without actually mentioning his name. 'What has happened is that people who do not have full possession of the facts and have no legal expertise — people whom from the very beginning we have been trying to help — have made irresponsible charges and threatened lawsuits, thus slowing down our efforts to help them.' Moglen pointed out that they have and continue to help all open source projects, including OpenBSD, but the process takes time. 'The required work has been made more arduous because some people have chosen not to cooperate in good faith. But we will complete the work as soon as we can, and we will follow the community's practice of complete publication, so everyone can see all the evidence.'"
This discussion has been archived. No new comments can be posted.

Software Freedom Law Center vs Theo de Raadt

Comments Filter:
  • by Space cowboy (13680) * on Sunday September 16, 2007 @04:35PM (#20628323) Journal
    I dunno, from the thread that's on the "lashed back" page, linked-to in the summary, it seems to me the SFLC does have some explaining to do...

    On 16/09/2007, Marc Espie wrote:
    > On Sun, Sep 16, 2007 at 09:17:41AM -0400, Eben Moglen wrote:
    > > We will make no more public statements until the work is complete, and
    > > we will be neither hurried nor intimidated by people who shout at us
    > > instead of helping.
    >
    > http://www.softwarefreedom.org/news/2007/jul/31/openhal/ [softwarefreedom.org]
    >
    > As I said in a former email, this has several glaring problems.
    >
    > As far as I understand, this is a public statement, even if it predates
    > the issue at hand.
    >
    > Please fix it in a timely manner, or take it down for now.

    Most noticeably, I fail to see any credits to Reyk Floeter in the
    above press release.

    Moreover, back when the release was first posted at the above address,
    there was no credit even to the OpenBSD project, which I found simply
    outrageous! Only after I (and possibly others) have complained to
    SFLC did they append the release to give some really vague mention
    that OpenHAL is based on OpenBSD's ath(4) HAL.

    Eben, is this the work that you are doing in bringing the communities
    together, by omitting such vital information as giving credit to the
    people and projects who performed most of the work? After all of
    these mistakes, after ignoring the ethical side of the relicensing,
    after failing to inform when relicensing is even legally an option,
    are you seriously even surprised about the negative attention that
    SFLC is getting now? Taking a step aside, don't you agree it is
    well-deserved?

    http://bsd.slashdot.org/article.pl?sid=07/09/13/156258 [slashdot.org]


    I'm a software developer, and I don't always write open-source code. I've written plenty of OS code, contributing to PHP, GCJ, SDL etc. and I GPL'd my geolocation website [hostip.info], but I also write commercial code.

    It can be hard to see a perfectly good piece of code, that does exactly what you want, and then have to go and re-implement it yourself, but that's what the GPL requires, and that's what I do. At the moment, I'm drawing over 1000 tiles for a CIV-2 type game, because the 'freeland' tiles are GPL, and having to put the amount of work in to duplicate it that I am doing, I completely understand why.

    I think that if anyone relicenced any of my OS code under their own, more restrictive (to pluck an example out of the air: GPL rather than BSD) licence, I would be incensed. It remains to be seen if this has happened within Linux, and if it has, hard questions are going to require very good answers..

    Simon

    • by Burdell (228580) on Sunday September 16, 2007 @04:39PM (#20628367)
      If you released something under the BSD license and someone made a closed-source commercial program out of it (as allowed under the BSD license and done many times by many companies), would you be incensed? If so, why would you release something under a license that allows others to do something you don't want?

      The current 3 clause BSD license allows someone to release derived works under the GPL (or under closed-source commercial license). If you don't like that, then don't use the 3 clause BSD license. Licenses have specific meaning that should be understood before they are used.
      • by Anonymous Coward on Sunday September 16, 2007 @05:10PM (#20628607)

        The current 3 clause BSD license allows someone to release derived works under the GPL (or under closed-source commercial license).
        Yes, it does. But, and this is the important part that the Linux people keep on conveniently forgetting: IT DOES NOT ALLOW YOU TO REMOVE THE ORIGINAL LICENSE!

        You can add the GPL to it if you like. It's allowed. You CANNOT do what the Linux people did and then REMOVE the BSD license from the code. The code remains licensed under the BSD license. Any changes you make can be other another license, but the original BSD license and attribution MUST be kept.

        The other important parts that the Linux people keep on trying to cover up is that while parts of the code in question were dual-licensed under the BSD license and the GPL, parts were BSD-ONLY and could not have the BSD license removed from them.

        It's also highly ironic that the "Software Freedom Law Center" is fighting to restrict freedom and prevent the BSD projects from using this code.
        • by einhverfr (238914)

          You can add the GPL to it if you like. It's allowed. You CANNOT do what the Linux people did and then REMOVE the BSD license from the code. The code remains licensed under the BSD license. Any changes you make can be other another license, but the original BSD license and attribution MUST be kept.

          I agree with both you and Theo, that one can only add the GPL when one adds elements subject to one's own copyrights. The BSD license is a license grant by the original authors to anyone who comes into posession of the code.

        • The code remains licensed under the BSD license.

          Only the original code remains licensed under the BSD license. The new code is licensed under the GPL, which means that you can redistribute the entire file only if you meet the conditions of both the BSD and the GPL license.

          parts were BSD-ONLY and could not have the BSD license removed from them.

          This is correct. However, it doesn't affect what you can do with the code: the GPL restrictions still apply to any additions, and hence to the file in its entirety
          • Re: (Score:3, Insightful)

            by tkinnun0 (756022)

            Only the original code remains licensed under the BSD license. The new code is licensed under the GPL, which means that you can redistribute the entire file only if you meet the conditions of both the BSD and the GPL license.

            The BSD applies to the code, with or without modifications. So any modifications must be also licensed under BSD if they are distributed with the unmodified parts. Or at least that's what Groklaw says [groklaw.net].

        • by Ozwald (83516)
          I see two, apparently unthought-of, outcomes, besides the usual "I hate ____" flames:

          1) Someone in the software community takes advantage of this and legal ships commercial code containing GPL. Sure, we don't see that as possible now, but what about someone thinking outside the box to undermine what the GPL fans are protecting? For example, is it possible to wrap another license around GPL code, make it dual license, then rip out the GPL? Just hypothetical of course, but if it's done the other way maybe som
        • by poopdeville (841677) on Sunday September 16, 2007 @08:06PM (#20630233)
          Regarding the BSD license:

          Yes, it does. But, and this is the important part that the Linux people keep on conveniently forgetting: IT DOES NOT ALLOW YOU TO REMOVE THE ORIGINAL LICENSE!

          It doesn't have to. If a product is dual licensed, and you choose License A over License B, you are not bound to the terms of License B . License B has no legal bearing on the relationship between the licensor and licensee. It is effectively nothing but "plain text", modifiable under the terms of License A, if License A permits modification. After all, if License A is accepted, it becomes the de facto copyright notice.
          • Even if it were dual licensed, the fact is that the legitimate copyright owner (only) can control the terms of redistribution. Although IANAL, I would hesitate to remove a license notice by any copyright holder, regardless of the plurality of licenses.

            Heck, even if I did upgrade a license to GPL v3+ from GPL v2+ I would still include a notice that some parts were licensed under the older license. I don't think I have to say which parts those are, however.

            I am not saying this is legal or not. I am saying it seems questionable to my mind.
        • Re: (Score:3, Informative)

          by budgenator (254554)
          Sorry but I didn't see where you had to retain the license, in the license, The copyright notice had to remain, but that is also required under the GPL.Is it possible you have not actually read the license, there is only the copyright notice, three clauses and the warranty disclaimer; pretty hard for anything to hide in that license.
          • Re: (Score:3, Insightful)

            Sorry but I didn't see where you had to retain the license, in the license.

            You do not have a right to sublicense a copyrighted work unless that right is explicitly granted to you by somebody who has the right to do so. In the case of BSD or GPL licensed works, nobody grants you the right to sublicense them. The license is a permission to do certain specified things. The only things you can do, beyond those that the license explicitly grants you permission to do, are those that the law says you can do (

        • by MMC Monster (602931) on Sunday September 16, 2007 @08:31PM (#20630443)

          The current 3 clause BSD license allows someone to release derived works under the GPL (or under closed-source commercial license).
          Yes, it does. But, and this is the important part that the Linux people keep on conveniently forgetting: IT DOES NOT ALLOW YOU TO REMOVE THE ORIGINAL LICENSE!
          Err.... If you cannot remove the BSD license, how can you release it under the GPL? The GPL is incompatible with portions of the BSD license (in particular, the fact that you can release modifications in binary form only).
          • by budgenator (254554) on Sunday September 16, 2007 @09:41PM (#20631045) Journal
            the BSD license only requires three things the copyright notice in source code, the copyright notice in binary only and the warranty waiver; anything else is allowed. GPL also requires the same things plus some additions, so therefore you can release previously BSD licensed code under the GPL (at least version 2) but because of the additional restrictions, you can't go back. I've gotten code that was previously BSD licensed under the windows EULA, so what's the big deal with GPL?
        • *yawn* (Score:4, Insightful)

          by msimm (580077) on Sunday September 16, 2007 @11:05PM (#20631633) Homepage
          I'm thinking the BSD community finally just got bored or jealous after watching us in the GPL community be so nutty for years and now their trying it themselves. The 'code' that everyone keeps harping on was a patch. A patch that was never actually accepted into any upstream repo. An issue that was address quite reasonably and quickly, despite these facts.

          Of course what's the point of being nutty if you can't bend/forget/reassemble reality to get really good and frothed up. This issue is really two separate issues, but if you read any n post you quickly see that there's not even a pretense of separation any more (it's wide open bitch season baby!). The issue started with a patch that stripped the BSD copyright notice on code that was originally released BSD/GPL2 (then modified BSD). This was wrong, but it was just some guy doing it (ie...er, not the 'Linux community'). It never made it into any upstream repos. It was loud as everyone got really bitchy about it but the fact is it wasn't 'sanctioned' action and no-one was actually trying to do, well, anything. The issue was quickly resolved.

          The issue that's really at hand that's being mostly swept under the carpet is long standing resent for the GPL community for regularly 'stealing' BSD code. Not violating the copyright mind you, but using the free software in GPL projects then not providing the patches or changes made back to the BSD community (because all the GPL work is...GPL and not reverse compatible).

          So on one hand you've got the nuts, constantly harping on this non-issue. On the other you have the developers who (at least in part) feel 'cheated' and consider it hypocritical for one open source group to benefit from the other without making the open code available to the other (which is the real issue). Then you have the license issues where things start to fall apart a bit. Since the BSD allows for use that closes code off (true freedom) this isn't even about the code not being available. Or, if it is, it's about a segment of the BSD community which appears to want to put more restriction on their code then the (permissive) BSD currently does. Which is kind of ironic really.

          As much as I like RMS it looks like BSD just got their own with Theo. And he has followers.
      • by samkass (174571)

        * Copyright (c) ,
        * All rights reserved.
        *
        * Redistribution and use in source and binary forms, with or without
        * modification, are permitted provided that the following conditions are met:
        * * Redistributions of source code must retain the above copyright
        * notice, this list of conditions and the following disclaimer.
        * * Redistributions in binary form must reproduce the above copyright
        * notice, this list of conditions and the following disclaimer in the
        * documentation and/or other mate

        • by swillden (191260) * <shawn-ds@willden.org> on Sunday September 16, 2007 @06:00PM (#20629017) Homepage Journal

          So if any of the BSD source code is used, clause 1 requires that both the original copyright and the 3 conditions appear in any copy of the published source code. It's not clear to me that also adding the GPL is compatible with this.

          Section 7 GPLv3 says:

          you may (if authorized by the copyright holders of that material) supplement the terms of this License with terms:
          [...]
          b) Requiring preservation of specified reasonable legal notices or author attributions in that material or in the Appropriate Legal Notices displayed by works containing it
      • If you released something under the BSD license and someone made a closed-source commercial program out of it (as allowed under the BSD license and done many times by many companies), would you be incensed? If so, why would you release something under a license that allows others to do something you don't want?

        The current 3 clause BSD license allows someone to release derived works under the GPL (or under closed-source commercial license). If you don't like that, then don't use the 3 clause BSD license. Licenses have specific meaning that should be understood before they are used.
        Ok, I think you are mischaracterizing the dispute. I don't think that anyone disagrees about the BSD license allowing for derivatives under the GPL v2 (see my latest journal entry why I don't think this applies to the GPL v3).

        The large issue has to do with whether the BSD license allows for sublicensing (i.e for a licensee to offer a portion of his/her rights to a downstream licensee as a separate license). I personally don't think it does. Instead, I see the BSD license as a direct grant of rights to anyone who gets a copy of the source code.

        In the case of a derivative work, nothing here prevents you from enforcing your own copyrights in any way you see fit (as long as you obey the terms of the BSD License). However, you cannot dictate to other people what terms govern the code which was provided to you under a nonexclusive BSD license. This is actually a big difference. Mr Moglen is on record saying that he thinks that the BSD license allows for this sort of sublicensing, and I disagree.
        • by Chandon Seldon (43083) on Sunday September 16, 2007 @06:17PM (#20629135) Homepage

          Mr Moglen is on record saying that he thinks that the BSD license allows for this sort of sublicensing, and I disagree.

          Why is your legal opinion on the issue even slightly relevant?

          Eben Moglen is a lawyer who has been asked for legal advice on this issue by programmers to whom it directly matters and has provided an informed legal opinion. I haven't seen that opinion, so I don't know if you're characterizing it correctly - but that doesn't matter to my comment here. In contrast to Moglen, you are some guy one Slashdot who admits to not being a lawyer and probably isn't even involved in this particular dispute.

          Why are you providing legal advice on this issue?

      • by jlarocco (851450)
        * Copyright (c) <year>, <copyright holder>
        * All rights reserved.
        *
        * Redistribution and use in source and binary forms, with or without
        * modification, are permitted provided that the following conditions are met:
        * * Redistributions of source code must retain the above copyright
        * notice, this list of conditions and the following disclaimer.
        * * Redistributions in binary form must reproduce the above copyright
        *
    • Re: (Score:2, Insightful)

      by Vardamir (266484)
      The problem here is that Theo and others seem to not understand that their license is one that allows relicensing. Ethical issues of relicensing aside, they chose the license, now they have to live with that choice.
      • Indeed. This whole issue makes me think Theo & co. doth protest too much.

        That's not to say that I can stomach the other side. Stallman is a fruitcake, the kind of guy that sensible people would be crossing the proverbial street to avoid rather than paling up to.
      • by Scarblac (122480)

        As far as I can see, the BSD license doesn't have a clause that says "you may also exchange this license by any other license you wish."

        It allows a lot, like including it in a larger package that has its own completely different license; even in packages where the source is never released, so that recepients of the package can't do the same thing you did.

        But as far as I can see, if you do give some user the source to your entire program, including the bits that were originally released by others under the

        • As far as I can see, the BSD license doesn't have a clause that says "you may also exchange this license by any other license you wish."

          You are quite correct, it doesn't. However alot of people people who support the GPL seem to think that if it is ok to take BSD licensed code and incorporate it into a commercial closed source product why do they have such a problem with the same code being re-licensed as GPL that explicitly prevents this.

          The problem is that we have two groups of people who both want similar aims but have vastly different tactics as to how to get there:

          The FSF and Stallman think all code should be open source and code shou

        • by zotz (3951)
          "But as far as I can see, if you do give some user the source to your entire program, including the bits that were originally released by others under the BSD, then those bits are still under the BSD to that user. Why wouldn't they? You're not the author, you can't relicense the code. Just that you're allowed to do a lot with it doesn't change the license."

          How is this an issue? Even if that user got that code from someone under the GPL and not the BSD, they also have a / can have a BSD license to it from th
          • Not necessarily. you write a piece of software, and publish it under the BSD license. I then grab it, adapt it to my needs, and sell it closed source. That's a "common", and well understood scenario. But what if I changed the code, and published it under the GPL? What happens then?

            From reading this [wikipedia.org], I get the impression that, from

            Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.

            you should conclude that, effectively, if you redistribute BSD code, it stays BSD.

      • The BSD license requires that any re-publishing of the source code include the BSD license and the original copyright notice. Any use of BSD code that fails to do this is in violation of copyright law. In addition, since at least one provision of GPLv3 conflicts with the BSD license, while it's probably true that BSD allows one to add GPLv2 to it, it's probably not true of GPLv3.

        Finally, I don't think it's fair to put the ethical issues aside. The FSF's entire basis of being is their ethical argument abo
      • The problem here is that Theo and others seem to not understand that their license is one that allows relicensing.
        You sure about that? I look at the license text and I see "All Rights Reserved" followed by a grant of some rights provided certain conditions are met. It seems to follow that any rights not explicitly granted (e.g. the right to relicense) are therefore reserved to the copyright holder.
    • I noticed this when the press release was on Slashdot [slashdot.org]. I usually have a lot of respect for Even Moglen, but in this issue he seems intent on pushing the FSF's agenda of GPL-über-alles. He was largely responsible for the GPL, so it's understandable that he might be somewhat prospective of it. Most lawyers understand the concept of conflict of interest.

      Free Software grants users a lot of freedom, but the most important one that it retains is that of attribution. Irrespective of the legal niceties, t

      • by Chandon Seldon (43083) on Sunday September 16, 2007 @06:25PM (#20629189) Homepage

        Irrespective of the legal niceties, taking credit for someone else's work is unacceptable, and shouldn't be condoned by anyone in the community.

        I haven't seen anywhere where Eben Moglen (or anyone else for that matter) has condoned misattribution. In this case what I have seen is 1.) loud people threatening legal action and 2.) Eben Moglen, a lawyer, shutting up in response while continuing to try to resolve any actual problems that are present. That's how things should be.

    • So you think you should be able to use these 'free' tiles to get a leg up on your project saving time and money and give nothing back in return.

    • by m2943 (1140797)
      I think that if anyone relicenced any of my OS code under their own, more restrictive (to pluck an example out of the air: GPL rather than BSD) licence, I would be incensed.

      Well, then don't release it under the BSD license; the whole point of the BSD license is for people to be able to have freedom in how they relicense the code. Linux developers happen to choose to relicense it under the GPL. Technically, they shouldn't remove the BSD copyright and license, but in practice, that makes little practical di
    • by burnin1965 (535071) on Sunday September 16, 2007 @08:40PM (#20630539) Homepage

      It can be hard to see a perfectly good piece of code, that does exactly what you want, and then have to go and re-implement it yourself, but that's what the GPL requires, and that's what I do.

      The GPL does not require you to re-implement, however, if you refuse to adhere to the GPL which made the code available to you in the first place then yes you must re-implement. The GPL did not force you into that situation, your need to avoid GPLing your own work is what forced the situation.

      I think that if anyone relicenced any of my OS code under their own, more restrictive (to pluck an example out of the air: GPL rather than BSD) licence, I would be incensed. It remains to be seen if this has happened within Linux, and if it has, hard questions are going to require very good answers..

      This makes absolutely no sense what so ever. You are okay with someone taking your code that you released under a BSD license and creating a closed source proprietary product which may restrict access to code, copying, reverse engineering, etc. etc., but when someone uses it to create a GPLed product you suddenly take issue? wtf? It seems that your quandary has more to do with your dislike of the GPL than it does with what someone does with your code. Even if the GPL were some ridiculous draconion software license removing all the rights of humanity their is no sense in whining about how the code was used when its being used in the way it was intended.

      If the BSD license was not followed then there is an issue, but if the license was followed and the resulting code was released under the GPL then there is absolutely no issue.
       
  • by Chemisor (97276) on Sunday September 16, 2007 @04:37PM (#20628341)
    What we really need is the clarification of the legal consequences of dual-licensing something. If it is indeed legal to strip out one of the licenses of dual-licensed code and continue development under only that license, then all we need to do is state this fact clearly in some place where people usually look when considering licensing issues. This way anyone who releases dual-licensed code will be aware that his code might not keep them both and will be able to decide in advance if that is a good thing.
    • * Copyright (c) <year>, <copyright holder>
      * All rights reserved.
      *
      * Redistribution and use in source and binary forms, with or without
      * modification, are permitted provided that the following conditions are met:
      * * Redistributions of source code must retain the above copyright
      * notice, this list of conditions and the following disclaimer.
      * * Redistributions in binary form must reproduce the above copyright
      * notice, this list of conditions and the following disclaimer in the
      * documentatio

      • by einhverfr (238914)

        Seems pretty clear to me, you can do whatever the hell you want under the BSD license except remove the copyright notice, or fail to produce the copyright notice in binaries.
        Of course you can't assert copyright either over the code.

        This means you can prepare derivative works under any license, but you can't assert that the new license covers the code you are merely using with permission.

        IANAL....
        • by m2943 (1140797)
          Of course you can't assert copyright either over the code.

          Correct. But you can assert copyright over your derivative work, add your own copyright notice, and add your own restrictions.

          The consequence of this is that you can take a piece of BSD-licensed code and make your derivative of it GPL-only once you have made any significant changes to it. You can do that because the BSD license isn't "viral" and doesn't impose any conditions on derivative works. That's the whole point of the BSD license after all.
      • Who is granting the rights? WHo is the recipient of those rights? On what basis can this be superceded other than by adding copyrighted elements of one's own to enforce independantly of those used with the permission of this license?
        IANAL....
      • by Chemisor (97276)
        > Seems pretty clear to me, you can do whatever the hell you want under the BSD license

        The issue here is not what you can do with BSD licensed code, but what you can do with code licensed under both the BSD and the GPL licenses. Specifically, the question is whether you can accept one license and not the other; which is precisely the decision that precipitated the current debate.

        To put it more bluntly, we need clarification on whether dual-licensing has any point in it at all. If it is valid, then all us
        • Specifically, the question is whether you can accept one license and not the other
          I think you can as:
          a) There'd be no point in dual licensing otherwise
          b) That's the plain and most obvious meaning of the word "alternatively" which is the word most often used (and used in this specific case I believe) when offering dual licences.

          (I seem to recall that some files in this case may not have been dual licensed, but that is another issue).
  • Oh (Score:5, Funny)

    by marcello_dl (667940) on Sunday September 16, 2007 @04:39PM (#20628361) Homepage Journal
    > Eben Moglen, lashed back at OpenBSD creator Theo de Raadt without actually mentioning his name.

    Whereas an explicit attack would have been way too common to be featured as news :)
  • by sweet_petunias_full_ (1091547) on Sunday September 16, 2007 @04:47PM (#20628421)

    I would suggest to Theo that if he wants those GPL slackers to give back to the BSD community and not run roughshod over the BSD license that he add a simple provision that forces the miscreants to give back their improvements.

    In fact, in the interest of sharing hard work freely with others, I happen to have a draft copy of what such a license would look like right here [gnu.org].

    P.S.

    The license shown even encourages non-GPL borrowers to keep their code open, all for the same low price.

  • will not be allowed or tolerated by the hairy guys & gals community. you prominent figures should have known that.
  • by stites (993570)

    "Let me therefore point out one last time that if the threats of litigation and bluster about crime and malpractice--none of which has the slightest basis in fact or law--were withdrawn, we would be able to resume detailed communication with everyone who has a stake in the outcome."

    In international diplomacy demands that the other party publicly accept certain negotaiting points as a precondition to private talks usually bar any private talks from taking place. Sure, Theo de Raad may be heavy on the th

    • by Xenographic (557057) on Sunday September 16, 2007 @06:18PM (#20629139) Homepage Journal
      This isn't international diplomacy and you're the one dragging controvertial figures like Kim Jong-Il into this. I haven't seen Eben (or even Theo) dragging him into the mix.

      Eben has a very good reason for advising them against such talks: Theo & co. are tossing around legal threats. It would be malpractice for him to recommend anything that might get his clients in legal trouble. It may not be very polite, but it is the law. It's ironic, because last I knew, the code was remove, and the guy with the dual-license said he was okay with it, though another guy wasn't. Now all we have left is people shooting their mouths off and opining about what should or ought to be the case, even when those hypothetical situations have nothing to do with what actually happened.

      If Theo wants to make legal arguments, he can make them in court.
      If Theo wants to do diplomacy, he can drop the legal threats.

      Frankly, I almost wish Theo'd sue. Then we'd find out whether the non-lawyer or the lawyer was actually right about what the law said. And maybe, just maybe, the one who was wrong about the law would shut the hell up already.

      Yeah, I know. It's not like that will ever happen.
      • by Ash Vince (602485)

        Frankly, I almost wish Theo'd sue.
        It's not really likely to happen since the case would be so prohibitively expensive neither party would actually win. By then end both parties would just run out of money and probably come to an agreement. Or one side would win only to emerge victorious and bankrupt.

        See my earlier post regarding how shit all western legal systems are in this regard, they all favor the rich.
  • by budword (680846)
    That for Theo, reality is not a factor. He's wasting his time. This isn't to flame Theo at all, I think OpenBSD is fantastic, and people more skilled than I claim he is a great programmer, but public relations is not in his skill set.
  • Both sides are right (Score:5, Interesting)

    by Anthony Boyd (242971) on Sunday September 16, 2007 @05:20PM (#20628699) Homepage

    I don't say this to be PC or placate anyone, but both sides appear to be right. Theo's side is correct that attribution was conspicuously absent. Eben's side is correct to admit it, and to fix it. Eben's side is also correct that threatening to litigate against a bunch of lawyers probably has repercussions. I think that's all Eben is saying here -- he is not saying "we won't change it, nyah!" But what he is saying is that since the response to his mistake was threats of lawsuit, his legal team has been forced to engage in S.O.P. for such cases, and withdraw. He feels that is a shame, because he's trying to work for Theo's group. But Theo's group is already casting aspersions on Eben's motives.

    If it were me, I would simply do both what Theo's team is asking, and what the lawyers are asking: fix the mistakes until Theo's team is satisfied, and then withdraw. If you're withdrawing because you hate 'em now and want to scream & shout, fine to feel that way, but maybe don't say it. If you're withdrawing under protest because you feel that you should/could have done more good things together, fine to feel that way, but face facts: the relationship is poisoned at this point. Get out before the venom poisons the relationship more. Especially if the group is suspicious of your motives and is tarnishing your reputation by saying nasty stuff about you -- just get the hell away from it, spend your limited resources to help groups who are more gracious and less prone to paranoia.

    If you do that, everyone wins. Theo's group gets rid of the suspicious betrayers they no longer want in their midst, and Eben's group gets away from a reputation-damaging public fight and money pit. There may also be karma -- perhaps Theo's group learns that they really needed Eben, and is forced to behave more politely with whoever next helps out. And perhaps Eben learns to be more careful up front, lest all his relationships end badly. Or perhaps, as Dane Cook says, they will "stick with the relationship for a few more years and end things violently."

    • by asuffield (111848)

      If it were me, I would simply do both what Theo's team is asking, and what the lawyers are asking: fix the mistakes until Theo's team is satisfied, and then withdraw.

      Unfortunately, the lawyers are operating under threat of lawsuit, and so they are compelled not to take any action that could be seen by a court as admission of guilt. If they do whatever Theo wants, then he could argue in court that they believed their actions were unlawful.

      This is basically what Moglen is saying: while they are under threat o

  • by saterdaies (842986) on Sunday September 16, 2007 @05:21PM (#20628711)
    The BSD License does NOT allow for relicensing:

    Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:

            * Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.
            * 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.
            * Neither the name of the nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission.


    If you are using a piece of BSD-licensed code, you must forever obey those three terms. They allow you to LINK code against any code - GPL, proprietary, whatever. BUT, you must always reproduce the copyright notice and the list of conditions. Nothing gives you the right to remove them.

    So, you can create a derivative work that uses both GPL and BSD code, but that BSD code hasn't become GPL'd and you must still obey the terms of the BSD license. This is a common misconception because the BSD license's terms are so liberal. So, Linux (and other GPL projects) can appropriate code from the BSD world provided that they obey the three terms listed in the BSD license. GPL projects can add GPL code to BSD code in the same file, but until the BSD code is gone from that file - which would probably happen over years of rewrites - they have to obey those three clauses. No where does the BSD license say "you can disobey these clauses because you've changed the license."

    Enforceability of contracts is what makes the GPL work. If the GPL world says it doesn't work when it's someone else's license, their projects are in deep trouble. And to think, this whole mess could be solved by simply removing that stupid relicense crap which has almost no practical implication other than GPL-ego.
    • If you are using a piece of BSD-licensed code, you must forever obey those three terms. They allow you to LINK code against any code - GPL, proprietary, whatever. BUT, you must always reproduce the copyright notice and the list of conditions. Nothing gives you the right to remove them.

      Slightly off-topic, but the GPL forbids you from linking BSD-licensed code to GPL-licensed code. Linking BSD-licensed code to LGPL-licensed code is OK, though.
    • by Burdell (228580) on Sunday September 16, 2007 @05:40PM (#20628863)
      However, that is not the full license text in question. It was a dual-license that also said:

      Alternatively, this software may be distributed under the terms of the GNU General Public License ("GPL") version 2 as published by the Free Software Foundation.


      Most people belive that means you can either accept the BSD terms or accept the GPL terms (and from then on follow only the one chosen set of terms). Theo seems to be claiming that you somehow have to follow both sets of terms. I guess it depends on your definition of "alternatively".
      • Re: (Score:3, Informative)

        by itsybitsy (149808)
        This depends on which files you are talking about in this case. Actually it seems that the so called "dual licensing" of the driver wasn't legally done for the files that are really in dispute! Since appending the GPL to a BSD licensed file itself was a violation of copyright any such GPL license is in violation and is thus the GPL license terms are null and void from having control of those files.

        Who'd want a license anyway that prevented me from simply linking source code or binary code licensed under ano
      • by aminorex (141494)
        Both you and the commentator to whom you reply have missed one crucial fact: The contributions submitted under the dual license terms which remain part of the file are licensed under the dual license terms. Until and unless every contributor has explicitly given permission to re-release the file under novel terms, the dual license still applies.
      • Re: (Score:3, Insightful)

        Most people belive that means you can either accept the BSD terms or accept the GPL terms (and from then on follow only the one chosen set of terms). Theo seems to be claiming that you somehow have to follow both sets of terms. I guess it depends on your definition of "alternatively".

        Yeah, but you'd think Theo would know better than to claim you have to follow both sets of terms. If you do, then the code is, effectively, GPLed. Theo seems to think that he can follow the BSD license when code is dual-li

    • Sooo, applying this theory to the second clause, this would mean that whenever anyone uses a piece of BSD code in a library, the binary library itself would be freely distributable by any user. Furthermore, when the BSD code is statically linked into your own work ... free distribution of the whole executable, or no distribution at all? There doesn't seem to be a middle way. How does Mac OSX cope with this?

      Wasn't BSD supposed to be the non-viral open source license? Better stick with the Apache license

  • As on lkml the discussion here is tedious beyond belief. The whole tone of it reminds me of the letters page "Smash Hits" magazine (a teenage music mag in the UK) in the 1980s - where every letter seemed to be someone screaming at someone else because they dared to criticise their favourite band. Anyone wanting evidence that a lot of computer nerds are poorly adjusted individuals with little social skills need only read the exchanges on lkml.
  • BTW, I agree with Theo on his interpretation of the BSD License as one which does not allow sublicensing. I think that Mr Moglen and others are factually wrong as to the nature of the license. But IANAL.

    However, if Theo threatened to sue Mr Moglen or anyone else over these sorts of things, this is not helpful either. It is exceedingly difficult to sue lawyers for malpractice on the basis of his/her opinions and representation strategy (I suppose if a lawyer, say, goes on vacation instead of representing
    • BTW, I agree with Theo on his interpretation of the BSD License as one which does not allow sublicensing. I think that Mr Moglen and others are factually wrong as to the nature of the license. But IANAL.

      So... we have established that you are not a lawyer. The next question is this: Do you have any BSD code that has been relicensed under the GPL?

      If not, then why the hell would anyone care about your non-lawyerly opinion on this legal topic?

      • by einhverfr (238914)
        They shouldn't care about *my* opinion by itself. They should care about the *law.* If it is an issue, they should discuss this matter with an attourney without an agenda.

        And BTW, I have made a decision *not* to upgrade certain projects of mine (LedgerSMB is a group project and not my own decision alone) to the GPL v3 because I depend on BSD-licensed software and I believe that the GPL v3 (as Mr Moglen has confirmed) requires the ability to relicense most dependencies under the GPL v3 with no additional p
  • by TrumpetPower! (190615) <ben@trumpetpower.com> on Sunday September 16, 2007 @05:42PM (#20628879) Homepage

    Since previous iterations of this discussion have been dominated by wildly inaccurate characterizations of the BSD license, it seems only proper to actually include it:

    http://ftp.bg.openbsd.org/OpenBSD/src/share/misc/license.template [openbsd.org]

    /*
    * Copyright (c) CCYY YOUR NAME HERE
    *
    * Permission to use, copy, modify, and distribute this software for any
    * purpose with or without fee is hereby granted, provided that the above
    * copyright notice and this permission notice appear in all copies.
    *
    * THE SOFTWARE IS PROVIDED "AS IS" AND THE AUTHOR DISCLAIMS ALL WARRANTIES
    * WITH REGARD TO THIS SOFTWARE INCLUDING ALL IMPLIED WARRANTIES OF
    * MERCHANTABILITY AND FITNESS. IN NO EVENT SHALL THE AUTHOR BE LIABLE FOR
    * ANY SPECIAL, DIRECT, INDIRECT, OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES
    * WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER IN AN
    * ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF
    * OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THIS SOFTWARE.
    */

    To break it down even further:

    • You must keep the text of the license intact in any copies you make.
    • So long as you keep the text of the license intact, you may do pretty much anything else you like with it.

    Now, obviously, slapping a copy of the GPL in the file is within your rights to “use, copy modify, and distribute” the software. However, it is entirely pointless to do so: the GPL places additional restrictions on what you may or may not do with the code, yet those restrictions are voided by the fact that the BSD license — and, let’s not forget, removing the BSD license is the one thing that the license forbids — grants you those very rights that the GPL takes away. In order for the restrictions of the GPL to be effective, you must remove the BSD license, which you cannot legally do.

    Now, can we please stop this nonsense about the BSD license giving you the right to re-license code under the GPL?

    Cheers,

    b&

    • by QuantumG (50515)
      "This code is GPL, it is based on code by John Hacker that is also available under this license: "

      That's perfectly legal. John Hacker can't make licensing claims to code you have written. You can't make licensing claims to code has written.. but you can make licensing claims to a combined work of his and your code.

    • by Kjella (173770) on Sunday September 16, 2007 @07:15PM (#20629781) Homepage
      Now, obviously, slapping a copy of the GPL in the file is within your rights to use, copy modify, and distribute the software. However, it is entirely pointless to do so: the GPL places additional restrictions on what you may or may not do with the code, yet those restrictions are voided by the fact that the BSD license and, lets not forget, removing the BSD license is the one thing that the license forbids grants you those very rights that the GPL takes away. In order for the restrictions of the GPL to be effective, you must remove the BSD license, which you cannot legally do.

      Nice legal theory, but copyright licenses work like logical ANDs not ORs. All it takes is for someone to add some modifications "/* Modifications copyright (c) CCYY YOUR NAME HERE are licensed under the GPLv2 */ and it can only be distributed under terms compatible with both the BSD license AND the GPL license, which effectively means the GPL license. Unless the license says something about the "work as a whole" which is the so-called viral aspect of the GPL, you need a separate license for the modifications and the copyright holder of those modifications sets those terms. Note that there's no way a license can void someone else's copyright, the GPL merely states that if you can't simultaniously fulfill the GPL and the other licenses, you must refrain from distributing entirely.
    • Actually, that's not the BSD license. It's the ISC license, which is now used by OpenBSD for all new code. It's even freer than the BSD license.

      http://www.opensource.org/licenses/bsd-license.php [opensource.org]
  • Consider the source (Score:5, Interesting)

    by afabbro (33948) on Sunday September 16, 2007 @06:49PM (#20629443) Homepage
    Read the followup [kerneltrap.org] and learn that...
    • The FSF's chief legal counsel, Eben Moglen, is "arrogant and unscrupulous" as well as "crafty and cowardly"
    • Moglen has a "stated goal" that he's breaking the law by "stealing as much software as possible and putting it under the GPL even when doing so is illegal"
    • The FSF is fighting a "war against reality"
    • The only reason the FSF exists is to "keep stealing code until they get busted, go to court, and then go back to stealing as much code as possible."
    Oh, and the "delusional and deranged" Richard Stallman is leading anyone who uses the GPL to a Jonestown-style koolaid suicide.

    Why does anyone bother reading JC Roberts' nuttery? He sounds like he's either 14 years old, off his meds, or both.

    • by fsmunoz (267297)

      * The FSF's chief legal counsel, Eben Moglen, is "arrogant and unscrupulous" as well as "crafty and cowardly"
      * Moglen has a "stated goal" that he's breaking the law by "stealing as much software as possible and putting it under the GPL even when doing so is illegal"
      * The FSF is fighting a "war against reality"
      * The only reason the FSF exists is to "keep stealing code until they get busted, go to court, and then go back to stealing as much code as possible."


      Oh, and the "delusional and deranged" Richard Stallman is leading anyone who uses the GPL to a Jonestown-style koolaid suicide.

      Why does anyone bother reading JC Roberts' nuttery? He sounds like he's either 14 years old, off his meds, or both.

      Hey, that reads like Slashdot in the last months. Either there is some overlap in /. and those lists, or the language is remarkably similar.

    • OK, I'll bite, cite your quotes...
  • by m.dillon (147925) on Sunday September 16, 2007 @06:53PM (#20629497) Homepage
    There's a lot of confusion here, but one thing that is set in stone is that if there is a BSD license on a piece of source code, that license cannot be physically removed from the source code.

    If you look at source from projects like FreeBSD, OpenBSD, NetBSD, and my own DragonFly project, as well as virtually any other large BSD project, you will find that a huge number of source files contain multiple licenses. Nearly all such licenses are BSD-derivative. The issue here is not the presence of multiple licenses but instead how they should be interpreted.

    I and all the open source authors I know have always interpreted the presense of multiple licenses as a union of license terms as it pertains to the portions of the source file created or modified by the authors in question. For example, if you went back in the CVS history of a source file and pulled at that older version of the code, potentially with fewer licenses attached to it, then you would be able to operate on that older version of the code and be bound only to the licenses that existed at that time. Another example, if person A builds a piece of software and applies the BSD license to it, and later on person B makes changes (or not) and adds the GPL to the code (if we assume for the moment that this is legal to do)... then all you have to do to get out of the GPL is to simply use a version of the source file where the GPL is not present. That's it. Even if the added GPL were interpreted as being illegal that still does not give you the right to use the second author's modifications to the work when you refuse to accept the license. However, neither does it necessarily give the second author the right to use the original author's work, and that is what Theo is arguing right now. and I think Theo is correct in this case.

    But again, regardless of how you interpret the legality or how you interpret the existence of multiple licenses in a piece of source code, the BSD license CANNOT be removed from that code, ever, by anyone except the copyright holder, for any reason.

    So in my view it is 'ok' to make modifications to a piece of open source code and slap on your own license for those modifications as long as the existing licenses allow it and as long as the original authors intent is to allow it. I have always interpreted the BSD license as allowing that because that is always how BSD developers have always interpreted the presence of multiple licenses in BSD code in the past. BSD developers have always been very careful to not accept patches that add incompatible licenses for no good reason, and have always been careful to not use someone else's work in ways that was clearly not intended by the original authors, legal or not.

    The spirit of the intent of the original author is what counts the most in the open source world. It is not a legal definition. It seems very clear to me that the ORIGINAL authors of the code that was relicensed do not wish it to be relicensed under the GPL. In the open source world, that trumps everything else. If they don't want it to be relicensed, then it can't be relicensed, period, regardless of the legalese. It is unarguable in the court of the open source world.

    Now copyright law has its own interpretation of how licenses in derived works operate, even on the definition of what 'derived' means. From a purely legal standpoint -- that is, if one were to sue in court, the interpretation is going to be different from the interpretation of the open source community.

    No matter what the legal interpretation is, though, I would not consider anyone creating a derived work from that code base and relicensing it under the GPL against the express wishes of the original authors to be part of the open source community any more. If these people are expressly going against the wishes of the original authors their modifications should be censored by our community, period.

    -Matt

  • by walterbyrd (182728) on Sunday September 16, 2007 @08:09PM (#20630271)
    * Somebody put BSD code into GPL code, and did not keep the original copyright tags. A totally isolated incident.

    * Althought the GPL coder was technically wrong, there was no harm done, and the situation has been fixed.

    * The BSD community has been having a screeming bitch-fest for weeks, making all kinds of insane accusations and threats.

    * Although the BSD community has no problem at with BSD code hidden in a msft binary, they get their panties all in a wad about BSD code put into Linux.

    * Theo de Raadt is so bitchy and irratating that even his fellow BSD zealots can't stand him much of the time. And even though Theo is clearly unqualified about legal matters, much of the BSD is getting behind on this.

    Is that about right?

While money can't buy happiness, it certainly lets you choose your own form of misery.

Working...