Software Freedom Law Center vs Theo de Raadt

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.'"

Re:I don't understand BSD

[Anonymous Coward]

If you're a university, teaching computer science and developing software, you may well want to return value to the taxpayer; to publish software that can be integrated by commercial corporations (the Oracles and Microsofts of this world) and hobbyists alike. And service-provision corporations like Novell and RedHat.

That's what BSD is for.

BSD code can't be relicenced - it can be linked!

[saterdaies]

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.

Re:I don't understand BSD

[poopdeville]

The BSD license is good compared to the GPL because you aren't required to assign copyright to the FSF (read the GPL preamble).

Reading the preamble is a good idea in your case. GPL doesn't require you to assign copyright to the FSF either. The FSF is mentioned once in the preamble, and that is only to say that they use the GPL for most of their projects internally.

Re:I don't understand BSD

[BootNinja]

You aren't required to sign your copyright over to the FSF if you use the GPL. The FSF does require you to sign over your copyright to have your code incorporated into any of the GNU tools, but if you are writing for say... the Linux kernel, or your own project, then you retain your copyright on the code you write.

Re:BSD code can't be relicenced - it can be linked

[itsybitsy]

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 another license? That would be Totalitarian Control (which is what the GPL attempts).

True-Free Software is BSD or even better, Public Domain.

Re:Shades of grey do not a good argument make

[budgenator]

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.

No, you need to understand copyright law.

[Estanislao Martínez]

(To disclaim something from the very start: IANAL.)

Forget the technical term "license," or the technical sense of "work" for a bit. What copyright law amounts to, essentially, is that when you do some creative work, you automatically have certain rights to control the use, modification and distribution of the result of your work. Except for certain exceptions (e.g., fair use), nobody can make use of your work without your permission.

This is what the term "license" means--you, as an author of a piece of creative work, give permission to other parties to use your work in certain specified ways, as long as they obey certain conditions.

If you want to use somebody else's work, you have to have permission to use it in the way in question. This means that if you want to run a program, you need permission to run the program; if you want to give a copy to somebody else, you need permission to do so; if you want to produce an original piece of work that contains, as an inseparable part of it, the work in question, and give this to somebody else, you need permission do that.

Also, when you give anything that incorporates the original work to somebody else, the recipient also needs to have permission to use it in whichever ways they do. There are two ways your recipients can obtain that permission:

1. The original author can give them permission to use their work.
2. The original author can give you permission to give others permission to use their work, under certain circumstances.

The second of these is called "sublicensing," and it's important to keep in mind, because neither the BSD nor the GPL licenses allow you to sublicense; they work by giving the same set of permissions to everybody.

Now, here's the deal with the "dual-licensed" code in the case in question (which shouldn't be taken as the general case for "dual-licensing," because the term is somewhat ambiguous). The author of the original work gives permission to everybody to make certain uses of the code, as long as they satisfy the terms of either the GPL or BSD. However, you're not given the right to sublicense the work; that means that you have no right to give others permission to use the original author's work, nor to dictate what terms they have to follow to use that work. The whole free software scheme works because the original author grants license to everybody, which means that your recipients have the original author's permission to use their code even if they receive it from another party like you.

Now, here's how I read the dual-license situation with the reproduction of the BSD license notice:

1. The dual license to use the code under either the BSD or the GPL terms does not require you to reproduce the BSD license terms in derived works that you give to other people.
2. However, if you do so, you are misrepresenting the license to those pieces of work; you are telling your recipients that they must abide by the terms of the GPL if they want to use the portions of your derived work that come from the original, when in fact, they may choose between the terms of the GPL and the BSD, because the original author licensed their work to everybody under the terms of either, and did not give anybody the right to sublicense as GPL-only. This misrepresentation may be illegal or not; but at the very least, you clearly shouldn't do that.

Another important thing is that for you to be able to assert copyright, you must have done some original, creative work. This is an important thing to keep in mind, because one of the arguments that Theo has made in this case is that there are some files that have had copyright and license notices added to them, but which do not show any original, creative work other than what's in OpenBSD. This may be true or not (I've heard the argument that making these files work in Linux, in and of itself, should qualify as original, creative work), but one thing for sure is that most people commenting about the situation are failing to even understand what arguments the participants are making.

Re:Do I understand this correctly?

[hhw]

* Somebody put BSD code into GPL code, and did not keep the original copyright tags. A totally isolated incident.
Whether or not it's isolated, it's clear from all the recent discussion that many people have the misconception that this is permissible under the BS license.

* Althought the GPL coder was technically wrong, there was no harm done, and the situation has been fixed.
Incorrect. Reyk's code is still being distributed by MadWifi with the GPL license wrapped around his code, when he has explicitly stated that this is against his wishes, and most likely illegal.

* The BSD community has been having a screeming bitch-fest for weeks, making all kinds of insane accusations and threats.
The BSD community is trying to correct common misconceptions by the GPL community, and also illustrate the uncooperative nature of the GPL license, and the practice of licensing modifications to BSD code under the GPL license.

* 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.
That is because MS has complied with the BSD license whereas the GPL developer in question has not. MS also doesn't assert itself as open source, or complain about the lack of cooperation with open source efforts. As the GPL community does, and is behaving starkly in contrast with these intentions, they are guilty of hypocrisy in this regard whereas MS is not.

* 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.
Theo is first and foremost a developer, and is highly respected in that regard. He is not concerned with his popularity rating or politics, and neither is most of the OpenBSD community. He is very vocal about his personal opinions, but everyone is entitled to their opinions. As his opinions are more likely to contribute than to take away from his work, they are not matters of concern for OpenBSD users.

Is that about right?
No. See above.