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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.'"
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, 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
Physicists get Hadrons!
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.
"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 threats and rhetoric but he is not Kim Jong-il.
I suggest that Eben Moglen drop his demands for pre-conditions to meeting with the BSD people. Instead he should offer to meet with all concerned without anybody setting pre-conditions for the meeting.
-----------------
Steve Stites
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.
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.
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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
To break it down even further:
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&
All but God can prove this sentence true.
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.
God damn! You BSD people need to calm the fuck down. You know the reason why I won't release code under either the BSD license or GPL? Because there are zealots like you on both sides. Whether dealing with Theo "de Dumbass" de Raadt or Richard "My Shit or the road" Stallman, it is pointless to argue with you people. It is far simpler to produce an individual license and tell both to fuck off. I like a few aspects of the short and simple BSD license, but I hate the way people act like idiots when they are confronted with it.
I hate GPL even more, because with each iteration Stallman and his cronies have successfully increased the number of limitations on the license. This is pretty stupid when you are trying to express free software that you will make so many god awful restrictions that basically inhibit projects more then it will ever help them.
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
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-licensed, without regard to the GPL. Makes sense to me. Why, then, does he think it's wrong to follow the GPL license?
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes
Why don't you take your medication, then wander on over to the FSF and Gnu sites? There's discussions of licenses at the Gnu philosophy site, including a list of free licenses. You will find a mention suggesting once circumstance under which you might want to use another license; there are likely others. They do seem to prefer licenses that are compatible with the GPLs, but that seems reasonable to me.
Those facts can be so inconvenient to a good rant, can't they?
"When you have eliminated the unacceptable, whatever is left, however improbable, must be the truthiness" - Holmes
- The license says "you can copy this code if you accept terms A or terms B".
- Terms A say all copies must include terms A, but do not mention terms B.
- Terms B say all copies must include terms B, but do not mention terms A.
- I accept terms B.
- Therefore, I must include terms B in all copies.
- I do not accept terms A, and don't have to because the license text says the right to copy is available under terms B, and I've accepted those.
- Terms B don't say anything about including terms A, so, legally, why would I be required to do so?
As far as I can tell, this side-effect is the only reason for someone to release code under a dual BSD/GPL license—otherwise, why not just use pure BSD?* 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?
Ummm... no.
The BSDL has 2 requirements. 1) Don't sue us and 2) Don't remove our license and attributions.
That's it. There are no requirements put on dual licensing, other than #2.
If you need web hosting, you could do worse than here
Nope, nobody is claiming the latter, except as a strawman, and everybody agrees on the former, for the cases where it applies (hint: there are disputed files that were only licensed under the BSD).
You can modify and redistribute dual-licensed code under either the terms of the GPL or the BSD. Insofar as the code you redistribute contains work that's covered under such a dual license, however, your recipients also have a dual license to those parts of the work you give them, because nobody has granted anybody a right to sublicense work. This means that:
Are you adequate?
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.
Quack, quack.
Your conceit is slimier than you are making it appear. You are leaving out the step where the duality of the license is conveyed by the original developer. Or are you just assuming that if you come across any source code with both the BSD and GPL licenses pasted inside that this implies a dual license? Presumably you need a statement from the original author, preferably in writing, even better written into the source file itself, that the original author intends the two license texts to function under a dual-license either/or interpretation.
The only way copyright for a work can be verified by a recipient is when the derivation chain can be reconstructed through the derived work(s) back to the original work. If a person goes out of his/her way within the letter of the law to muddy that trail, I would regard the actions of that person as quite vile.
Perhaps you can, as you suggest, legally strip out one of the licenses (and the text granting the dual license, if that was present within the source file). But then if you distribute your derived work, you are handing people half a proof. Sensible projects would not accept the work in that form. They would want to see the derivation chain before taking that risk.
You seem to be suggesting by implication that the derivation chain can be maintained outside the text of the source file by some auxilliary shuffleupagus which most users of the source are unlikely to chance upon. If that wasn't your purpose, why delete the in-place full disclosure of the dual-license status of the original work?
In my view, there is no ethical way to substitute for the attribution "this is a derived work of a work by Bob Dawg who granted permission to do so under a dual-license" to "this is a derived work of an original work by Bob Dawg [and good luck figuring out the terms of his original license grant]" and by grant I mean his *statement* that permission was granted under dual-license terms, not the mere inclusion of two different licenses into the top of a source file, which in the absence of a clear statement, I would regard as ambiguous.
I see no problem with writing "This a derived work of an original work by Old Author dual-licensed under the GPL and BSD licenses. The original work is available at URL. New Author has elected to make changes under the GPL, which is reproduced below."
My point is not about trimming out the text of the BSD license, it's about muddying the terms of the original grant through crafty omission in the wording of your own grant, to the detriment of any future party who comes into contact with the derived work.
Your use of the word legal word "requires" (in the selfish conjugation: that I myself can not be sued by any party) neglects getting along nicely with any other parties to the overall process, upstream or downstream.
I could be wrong. The mere inclusion of two license texts could amount to an implicit grant of dual-license either/or status. So what? The only thing standing upon the letter of the law achieves is breeding more lawyers. Then you have to pay them a lot of money to stop breeding. With luck, and patience, and buckets of cash the legal bugs are resolved. Original authors, if they have any time left to code, learn to paste a more explicit legal text into their document that accomplishes the same thing legally at great cost that common sense and good will could have accomplished in the first place.
Only a dimwit or a lawyer advocates a move in the game tree where the only consequence of the end game is that the lawyers get rich while the loophole is closed. That is after all an explicit function of the legal system: to be so damn expensive and unproductive that it scares us into applying common sense against natural inclinations such as the one you expressed.
howso? The FSF in the past has said that the fact that a program optionally uses GNU Readline makes no difference.
My guess is that they don't go after large established BSD projects because of the bad press it would generate and the fact that the issue is moot unless Readline ends up used in a proprietary application. This is is the case without regard to the question of whether linking implies derivation.
In short it would accomplish nothing, probably go nowhere, and achieve a lot fo bad press.
IANAL.
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