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.'"

Comments

Shades of grey do not a good argument make

[Space cowboy]

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/
>
> 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

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

Re:Shades of grey do not a good argument make

[Burdell]

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.

Re:Shades of grey do not a good argument make

[Anonymous Coward]

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.

Re:Shades of grey do not a good argument make

[swillden]

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

Re:Shades of grey do not a good argument make

[Chandon Seldon]

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.

Re:Shades of grey do not a good argument make

[poopdeville]

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.

Re:Shades of grey do not a good argument make

[MMC Monster]

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).

Re:Shades of grey do not a good argument make

[burnin1965]

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.

Re:Shades of grey do not a good argument make

[budgenator]

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?

Re:Shades of grey do not a good argument make

[Estanislao Mart�nez]

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 (e.g., fair use). Sublicensing isn't one of them.

Re:Shades of grey do not a good argument make

[einhverfr]

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.

Need to clarify dual-licensing

[Chemisor]

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.

IANAL, and I think you are missing the point

[einhverfr]

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.

Re:IANAL, and I think you are missing the point

[Chandon Seldon]

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?

Re:IANAL, and I think you are missing the point

[einhverfr]

Two points:

1) Lawyers are sometimes wrong. I have seen people get into serious trouble because of bad legal advice.
2) When a lawyer is wring, you have very little recourse.

So, the question is not about what I think or what Eben thinks. It is what a judge would decide if a case came down to it. In essence the question is what the law is. (and bad legal advice is no excuse in the eyes of the law.) Hence everyone should do what they can to understand the laws that affect them.

Also I am not saying that Eben is generally wrong about copyright matters. Most of the details he has provided to me about how copyright works even in an international setting have been accurate and insightful. We just disagree about the interpretation of the BSD License and whether it follows the licensed code. While this disagreement is critical in cases like the Atheros driver spat, and in questions of GPL3 compatibility, it is moot for most other sorts of questions.

My major point is that people should seek assistance from a real and unbiased attourney. I am not a real attourney and Mr Moglen is not exactly unbiased.

(Note that the danger of bias is that it can tilt one's interpretation of finer points in unteneble directions. Not that someone will be wrong about most cases, but just that it increases the odds of a dangerous bit of advice being issued.)

The Actual BSD License

[TrumpetPower!]

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

/*
* 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&

Re:The Actual BSD License

[Kjella]

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.

Do you know WHY he gave that advice?

[Xenographic]

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.

Re:It wasn't a derivative work

[Anonymous Coward]

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.

Confusion on Relicensing

[m.dillon]

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

*yawn*

[msimm]

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.

Re:all, not any

[tkinnun0]

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.