On Tuesday 23 October 2007 17:27:07 Dan Williams wrote:
quoted text
> On Tue, 2007-10-23 at 15:41 -0400, Daniel Hazelton wrote:
> > On Tuesday 23 October 2007 14:54:54 Dan Williams wrote:
> > > On Tue, 2007-10-23 at 13:07 -0400, Daniel Hazelton wrote:
> > > > On Tuesday 23 October 2007 10:05:12 Dan Williams wrote:
> > > > > On Tue, 2007-10-23 at 00:00 +0200, Pavel Machek wrote:
> > > > > > Hi!
> > > > > >
> > > > > > > > > Yes, I'm quite sure. There's MODULE_LICENCE("GPL"), IIRC.
> > > > > > > >
> > > > > > > > That doesn't say much, some manufacturers add that line to
> > > > > > > > their driver just to prevent the module loader complaining
> > > > > > > > about a non-GPL driver...
> > > > > > > >
> > > > > > > > There should be a copyright notice or a license file
> > > > > > > > accompanied with the driver that clearly states the license
> > > > > > > > of the driver.
> > > > > > >
> > > > > > > Lacking an explicitly stated license it can be argued that,
> > > > > > > since the MODULE_LICENSE() macro is meant to define the actual
> > > > > > > license on the code, this code is GPL. No, it isn't an explicit
> > > > > > > definition, but lacking any other signs of the license, the
> > > > > > > implicit declaration of it being GPL is (or should be) enough
> > > > > > > to deflect charges of copyright infringement.
> > > > > >
> > > > > > Yep, I believe this driver is GPLed. They published the source
> > > > > > and there's nothing to suggest otherwise, and there's explicit:
> > > > > >
> > > > > > #define DRIVER_AUTHOR                   "Jeff
> > > > > > Lee<YY_Lee@issc.com.tw>" #define DRIVER_DESC
> > > > > >    "IS89C35 802.11bg WLAN USB Driver" MODULE_LICENSE("GPL");
> > > > >
> > > > > If there isn't an explicit COPYING or LICENSE file or something
> > > > > distributed with the driver, and if there aren't copyright/license
> > > > > headers at the top of the files in question, I have a hard time
> > > > > agreeing that MODULE_LICENSE("GPL") _definitely_ means that the
> > > > > author has GPL-ed the driver intentionally.  Of course that's the
> > > > > way it's supposed to work, but to me this doesn't pass sufficient
> > > > > muster to be definitely called GPL without additional
> > > > > clarification.
> > > > >
> > > > > Dan
> > > >
> > > > Lacking any other indication MODULE_LICENSE is supposed to mark the
> > > > license that the code is being distributed under. If companies are
> > > > intentionally
> > >
> > > Step 1: Ask the author.
> >
> > Agreed. This should have been done before this discussion even started.
> >
> > > Step 2: if the author doesn't reply, then we can have this discussion
> > >
> > > MODULE_LICENSE is just a random string that could have been added by
> > > anybody, not necessarily the author.  Unless you can determine the
> > > intent of the author explicitly, a single MODULE_LICENSE is not
> > > sufficient to concretely determine the license of the code.  It's only
> > > in one file.  There is nothing to explicitly state the overall license
> > > of the whole work unless each file has a header referring to the
> > > license or unless there is a license document distributed with the code
> > > as a whole.
> > >
> > > In the absence of any other indication, MODULE_LICENSE doesn't not
> > > concretely determine the license of the code.  You can assume it does,
> > > but that's your gun to put to your own head.
> >
> > The intent of MODULE_LICENSE is to mark the license on the code. This is
> > clearly stated in several places in Documentation/ (if my memory serves).
> >
> > > > mis-using this to get around the "internal interfaces" limitations
> > > > (where some interfaces are not available unless the module is GPL'd)
> > > > and the warning message printed in the logs when the module is not
> > > > GPL'd then they are (technically) in violation of the law.
> > > > (interfaces that are GPL only are considered so internal to the
> > > > kernel that using them makes your code GPL because of the inclusion
> > > > of GPL'd code. And no - I am not going to get into that discussion -
> > > > it's pointless)
> > >
> > > Just because the module may be loading illegally says _nothing_ about
> > > the license of the code.
> >
> > No, but it is a mis-use of MODULE_LICENSE, which is supposed to state the
> > correct license on the code.
> >
> > > > In the end, using MODULE_LICENSE for any purpose other than declaring
> > > > the chosen license for the code is deceptive. So it is easily
> > > > arguable that by
> > >
> > > "deceptive" is also not "this code code is definitely GPL".  Doesn't
> > > matter whether it's deceptive or not.  We do not know that the code is
> > > GPL.
> >
> > Deception in order to create a situation whereby you can prosecute people
> > for violation of the law is illegal. Therefore not distributing the code
> > with any indication as to the license other than MODULE_LICENSE and
> > attempting to prosecute afterwards is illegal. QED: even if the code is
> > not GPL'd (and such could be learned by contacting the author), the fact
> > that it ships without any indication of the license other than
> > MODULE_LICENSE implies that the license is what is stated and prosecution
> > on the grounds that it isn't becomes entrapment.
> >
> > > > not including any license with the code other than the MODULE_LICENSE
> > > > statement and then trying to prosecute because MODULE_LICENSE doesn't
> > > > accurately state the license on the code is entrapment and illegal.
> > >
> > > Arguable doesn't mean that it's concrete enough to pass legal muster. 
> > > I am not a lawyer, but this just doesn't pass the bar.
> >
> > I know several and have asked one that is a very good friend. He agreed
> > with my interpretation of the presented facts - that since the only
> > indication of what the license on the code might be is MODULE_LICENSE it
> > can be safely assumed that the license is what that states. Any attempt
> > to later prosecute because the license is not what is stated would
> > constitute entrapment - which is illegal.
>
> I asked Tom Callaway, who heads up all the legal/licensing issues for
> Fedora.  He said essentially "it won't be in Fedora" on just the basis
> of MODULE_LICENSE.  I can run it past Red Hat lawyers too.  It's just
> not clear with only MODULE_LICENSE, and not clear pretty much means
> Don't Touch until it becomes clear.

I have to agree with this. There are better ways to determine the license - 
including contacting the author. However, in the lack of any other source of 
information about the license MODULE_LICENSE can be used as a (somewhat) 
defensible position. It'd cost a lot of money and be a very hard fight, 
though - which is one reason why no company would (or should) take the 
chance. Nor should any person, unless they happen to have the money to fight 
the battle.

DRH

quoted text
>
> Dan
>
> > DRH
> >
> > PS: note that all legal information contained here-in is only known to be
> > valid in the US.



-- 
Dialup is like pissing through a pipette. Slow and excruciatingly painful.
-
unsubscribe notice
To unsubscribe from this list: send the line "unsubscribe linux-kernel" in
the body of a message to majordomo@vger.kernel.org
More majordomo info at  http://vger.kernel.org/majordomo-info.html
Please read the FAQ at  http://www.tux.org/lkml/