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.'"

Comments

A couple more links:

[ak3ldama]

here's the article on undeadly and and here's a synopsis from a misc post An excellent (and apparently sarcastic) quote:

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

Re:A couple more links:

[Anonymous Coward]

The followup comment by Theo 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.

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.

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

[squiggleslash]

Here you go.

Note the difference in terms of how the Linux and OpenBSD communities handled that case.

1. The Linux community waited until OpenBSD developers were violating copyrights before raising the issue. In this case, the OpenBSD people complained about a diff posted to a mailing list that hadn't even been accepted
2. The Linux community raised the issue with two relevant mailing lists and a small group of other concerned parties. The OpenBSD people had the supposed BSD violation (that wasn't, because the diff hadn't been accepted at that stage) up on undeadly.org within 24 hours.
3. The Linux community made no specific allegations, and offered help with completing the driver. The OpenBSD people have essentially insulted the Linux community throughout this discussion.

And on the defensive side:

1. The OpenBSD community went through hoops to claim that there never was a copyright violation because, like, the guy who put the code in the CVS repository intended, like, to change it and stuff. The Linux community has generally refrained from claiming that, if accepted, the diffs wouldn't violate any copyrights, except to point out that Theo is overreaching in that some of the files can, actually, be relicensed because they're dual licensed (an argument Theo has tried to counter by making the bizarre claim that a dual licensed file with a specific statement saying that the license of the GPL can be used instead of the BSD license must perpetually remain under the BSD license.)
2. The OpenBSD community, and Theo in particular, accused the Linux team of being "Inhuman". The Linux developers have made no such insults against their BSD accusers, despite having more cause to.

Further, to make things even more ridiculous, many on the BSD side claimed at the time of the bcw violation that this was somehow evidence that the BSD license was "superior" because it wasn't viral, and BSD code could be incorporated into Linux without violating any licenses. They're now arguing the exact opposite, some even claiming the BSD license is viral.

This is pretty straightforward. There are no infringing Linux kernels out there.

At the same time, the level of hysteria raised by the OpenBSD community, and the distortion of truth and double standards exhibited by its leadership, not to mention the insults and constant attempts to alienate similar groups, 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.

OpenBSD is a respected operating system that is relied upon by communities and businesses across the world. It deserves, and demands, a stable leadership committed to creating the best operating system they can. The current OpenBSD leadership isn't that. This must change.

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

[squiggleslash]

I think you might be able to safely say that for the NetBSD/OpenBSD split, but if you combine those as one project that went wrong due to egos, you're still looking at three separate development paths that evolved because of technical issues. The NetBSD people were just trying to get their system up and running on their hardware, and would have had problems keeping up with the FreeBSD development schedule. OpenBSD grew out of that, but also reflects Theo's (rightful) concern with code quality (which has ended up translating into security, a term easier for outsiders to understand.)

The major odd one out indeed is DragonFly BSD, it's an entirely different design and required a significant amount of experimentation of the type you just can't do on a live kernel. It's hard to see how the design could have occurred within the confines of the FreeBSD project. In some ways, it's a shame we're not seeing that kind of imaginative design work resulting in the occasional Linux fork. It would be a shame if this kind of innovation was stifled because people were worried that others might see them as ego maniacs, and there's no practical way to incorporate that work into an existing project. Matt Dillon certainly doesn't deserve that.

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

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.

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: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 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" 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: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: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: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.)