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Software Freedom Conservancy: Distributing Linux With ZFS Is Illegal (phoronix.com)
LichtSpektren writes: Phoronix reports that Bradley M. Kuhn and Karen M. Sandler at the Software Freedom Conservancy (SFS) have posted a blog post today arguing that Canonical's plan to distribute Ubuntu 16.04 LTS "Xenial Xerus" with support for the ZFS file system violates the Linux kernel's GPLv2 license.
On February 18, Dustin Kirkland at Canonical wrote on his blog: "We at Canonical have conducted a legal review, including discussion with the industry's leading software freedom legal counsel, of the licenses that apply to the Linux kernel and to ZFS. And in doing so, we have concluded that we are acting within the rights granted and in compliance with their terms of both of those licenses...The CDDL cannot apply to the Linux kernel because zfs.ko is a self-contained file system module — the kernel itself is quite obviously not a derivative work of this new file system. And zfs.ko, as a self-contained file system module, is clearly not a derivative work of the Linux kernel but rather quite obviously a derivative work of OpenZFS and OpenSolaris. Equivalent exceptions have existed for many years, for various other stand alone, self-contained, non-GPL kernel modules. Our conclusion is good for Ubuntu users, good for Linux, and good for all of free and open source software."
The SFS's blog post of today states: "We are sympathetic to Canonical's frustration in this desire to easily support more features for their users. However, as set out below, we have concluded that their distribution of zfs.ko violates the GPL."
On February 18, Dustin Kirkland at Canonical wrote on his blog: "We at Canonical have conducted a legal review, including discussion with the industry's leading software freedom legal counsel, of the licenses that apply to the Linux kernel and to ZFS. And in doing so, we have concluded that we are acting within the rights granted and in compliance with their terms of both of those licenses...The CDDL cannot apply to the Linux kernel because zfs.ko is a self-contained file system module — the kernel itself is quite obviously not a derivative work of this new file system. And zfs.ko, as a self-contained file system module, is clearly not a derivative work of the Linux kernel but rather quite obviously a derivative work of OpenZFS and OpenSolaris. Equivalent exceptions have existed for many years, for various other stand alone, self-contained, non-GPL kernel modules. Our conclusion is good for Ubuntu users, good for Linux, and good for all of free and open source software."
The SFS's blog post of today states: "We are sympathetic to Canonical's frustration in this desire to easily support more features for their users. However, as set out below, we have concluded that their distribution of zfs.ko violates the GPL."
Reading their piece, they sound like they are lawyers looking for a client, like they want to take Canonical to court over this. One likes to think that anyone who defends OSS must be on the side of the light, but I note that the Conservancy sued companies using Busybox over the objections of at least some of the copyright holders. This quote is kind of interesting:
"But that didn't stop them from creating a self-funding legal machine where they never found any actual useful code that should have gone upstream, but they still demanded $15k or so in legal fees each time so they could go sue the next company."
For those who didn't RTFA, the core of the question is this: Is a Linux distro that contains a ZFS module a combined product, derived from Linux and/or ZFS? Or are they two independent items that happen to be delivered in the same package. The Conservancy states "we have yet to encounter a Linux module that — when distributed in binary form — did not, in our view, yield combined work with Linux", and then they go on to say that the intend to "exhaust every diplomatic option...before seeking resolution from the courts".
Only: nobody is asking them to take anyone to court. If Oracle doesn't like this (they are the primary holder of ZFS copyrights), I'm sure they have their own lawyers. So WTF is going on here? Instead of a patent troll, maybe we have a GPL troll?
Enjoy life! This is not a dress rehearsal.
The goal of the GPL is not to get the most widely used software (although that's a noble goal). The goal is to ensure that the users of the software are able to maintain and secure it so they don't get left hanging out to dry if something happens to their upstream vendor. When you receive software under the GPL you expect to have these freedoms. When software with multiple licenses is combined, users have to become lawyers to know what rights they actually have and whether these freedoms are protected. I'm not sure it's a concern in this particular case since both GPL and CDDLv1 protect the user's rights. (It's only distributors who are affected by this). But knowing that you can secure and maintain software is valuable. It would be undesirable to get into a situation where you think you have that right, but it turns out that you don't.
Copyright of the Linux Kernel is actually spread across all its contributors, The Linux Foundation doesn't have any overriding ownership. Though of course any particular author(s) code could be excised from it in order to make their copyright irrelevant.
In any case though, the copyright holders get to determine what licenses or permissions to grant over the work, they don't get to then decide how the license should be interpreted - that's up to an arbitrator or a court. If Canonical's lawyers are incorrect in their interpretation then someone will need to bring a court case to have it resolved.
The SFC is not the owner of either of the works in question and is not the author of the license in question. They have no stake or standing in the matter.
It seems they do have a stake:
The GPL Compliance Project for Linux Developers is comprised of copyright holders in the kernel, Linux, who have contributed to Linux under its license, the GPLv2. These copyright holders have formally asked Conservancy to engage in compliance efforts for their copyrights in the Linux kernel. In addition, some developers have directly assigned their copyrights on Linux to Conservancy, so Conservancy also enforces the GPL on Linux via its own copyrights in Linux.
From https://sfconservancy.org/copy...
I am a lawyer, but this is not legal advice. If you want legal advice, pay my retainer.
There is a *really* big hole in the analysis.
Linux is *not* quite GPL; it, like many others, is better understood as "quasi-GPL", or QGPL.
Since pretty much the beginning, the Linux developers approved, condoned, and encouraged binary, non-GPL modules. Standard legal analysis means that this trumps the boilerplate of the license/contract.
The second serious error is arguing about the FSF position on linking. Under the rules of legal analysis, the author of a document's opinion is weighted at pretty much nothing: the author had his chance, and later comments are irrelevant. That is, there are about 7 billion people whose opinions on interpreting it come first.
Now whether distributing Linux with that module violates Sun's CDL could be an entirely different issue; I've never looked at it.
hawk, esq.