From: Theodore Tso <tytso@...>
Subject: Re: Wasting our Freedom
 [1]Date: Sep 16, 5:12 pm 2007

On Sun, Sep 16, 2007 at 10:39:26PM +0200, Hannah Schroeter wrote:
> >The most questionable legal advice in this thread was by Theo de Raadt 
> >who claimed choosing one licence for _dual-licenced_ code was illegal...
> 
> JFTR, I do *not* think that that assessment was questionable. Unless the
> dual-licensing *explicitly* allows relicensing, relicensing is forbidden
> by copyright law. The dual-licensing allows relicensing only if that's
> *explicitly* stated, either in the statement offering the alternative, or
> in one of the licenses.
> 
> Neither GPL nor BSD/ISC allow relicensing in their well-known wordings.
> 
> If you think that's questionable, you should at least provide arguments
> (and be ready to have your interpretation of the law and the licenses
> tested before court).

Hannah,

What is going on whenever someone changes a code is that they make a
"derivative work".  Whether or not you can even make a derivative
work, and under what terms the derivitive work can be licensed, is
strictly up to the license of the original.  For example, the BSD
license says:

  Redistribution and use in source and binary forms, with or without
  modification, are permitted provided that the following conditions
  are met....

Note the "with or without modification".  This is what allows people
to change BSD licensed code and redistribute said changes.  The
conditions specified by the BSD license do not mention anything about
licening terms --- just that if you meet these three conditions, you
are allowed to redistribute them.  So for example, this is what allows
Network Appliances to take BSD code, change it, and add a restrictive,
proprietary copyright.

So for code which is single-licensed under a BSD license, someone can
create a new derived work, and redistribute it under a more
restrictive license --- either one as restrictive as NetApp's (where
no one is allowed to get binary unless they are a NetApp customer, or
source only after signing an NDA), or a GPL license.  It is not a
relicencing, per se, since the original version of the file is still
available under the original copyright; it is only the derived work
which is under the more restrictive copyright.   

Now, the original copyright can say that you aren't allowed to do
this; for example, the GPL says that you are not allowed to add any
restrictions on the copyright license of any derived works of GPL'ed
code.  This is why some BSD partisans claim that their license is
"more free"; the BSD license allows people to add more restrictive
copyright license terms on derived works.

OK, what about dual licensed works?  The specific wording of the dual
licensing is that you can use *either* license.  That means, you can
treat code as if only using the BSD license applied, or only if the
GPL license applied.  That is, the end-user can redistribute if either
the conditions required by the BSD license *or* the GPL license
applied.  But we've already shown that the BSD license allows the
creation of a derived work with a more restrictive license --- such as
the GPL.

But don't take my word for it; the Software Freedom Law Center has
issued advice, pro bono, written by lawyers about how this can be
done.  If you want, feel free get your own lawyers and ask them to
provide formal legal advice.

> A difference is, GPL requires it under every circumstance. BSD does not,
> indeed. But how should one expect it from *OSS* people that even *they*
> don't give back? Do you really want to put yourself on the same level as
> closed-source companies?

The problem with your argument is that BSD folks have claimed that the
BSD license is morally superior --- "more free than the GPL" ---
because you don't have to "give back" (or more formally, create a
derivitive work with a copyright license more restrictive than the
BSD).  If that is true, it is the absolute height of hypocrisy to
suddenly start complaining when code is restricted via an another open
source license such as the GPL, but not complain when NetApp uses BSD
code to make million and millions of dollars without giving anything
of substantial value back.  At least in the case of GPL'ed code you
still can look at the changes and decide how and whether you to
reimplement them.  Why don't you go and try asking NetApp for sources
to WAFL, and claim that they have "moral" duty to give the code back,
and see how quickly you get laughed out of the office?

    	    	    	    	    	   - Ted
-


From: Claudio Jeker <cjeker@...>
Subject: Re: Wasting our Freedom
 [1]Date: Sep 17, 8:55 am 2007

On Sun, Sep 16, 2007 at 05:12:08PM -0400, Theodore Tso wrote:
> On Sun, Sep 16, 2007 at 10:39:26PM +0200, Hannah Schroeter wrote:
> > >The most questionable legal advice in this thread was by Theo de Raadt 
> > >who claimed choosing one licence for _dual-licenced_ code was illegal...
> > 
> > JFTR, I do *not* think that that assessment was questionable. Unless the
> > dual-licensing *explicitly* allows relicensing, relicensing is forbidden
> > by copyright law. The dual-licensing allows relicensing only if that's
> > *explicitly* stated, either in the statement offering the alternative, or
> > in one of the licenses.
> > 
> > Neither GPL nor BSD/ISC allow relicensing in their well-known wordings.
> > 
> > If you think that's questionable, you should at least provide arguments
> > (and be ready to have your interpretation of the law and the licenses
> > tested before court).
> 
> Hannah,
> 
> What is going on whenever someone changes a code is that they make a
> "derivative work".  Whether or not you can even make a derivative
> work, and under what terms the derivitive work can be licensed, is
> strictly up to the license of the original.  For example, the BSD
> license says:
> 
>   Redistribution and use in source and binary forms, with or without
>   modification, are permitted provided that the following conditions
>   are met....
> 
> Note the "with or without modification".  This is what allows people
> to change BSD licensed code and redistribute said changes.  The
> conditions specified by the BSD license do not mention anything about
> licening terms --- just that if you meet these three conditions, you
> are allowed to redistribute them.  So for example, this is what allows
> Network Appliances to take BSD code, change it, and add a restrictive,
> proprietary copyright.
> 
> So for code which is single-licensed under a BSD license, someone can
> create a new derived work, and redistribute it under a more
> restrictive license --- either one as restrictive as NetApp's (where
> no one is allowed to get binary unless they are a NetApp customer, or
> source only after signing an NDA), or a GPL license.  It is not a
> relicencing, per se, since the original version of the file is still
> available under the original copyright; it is only the derived work
> which is under the more restrictive copyright.   
> 

Wohoho! Slow here please. NDA have nothing to do with licenses and
especially with copyright. NetApp even though their stuff is under their
copyright and license does hopefully not modify the copyrights of imported
BSD/ISC code. That would be against the law and I hope their leagal
departement is smart enough to not do this mistake especially because the
BSD license those not hinder them in any way.

Now comes the funny part, as the BSD code in NetApp is available
from public sources -- for example from OpenBSD -- it is actually not
covered by the NDA. NDAs can only cover information that is not
publicly available -- you can only forbit disclosure of information that
is secret in the first place.

Finally most companies know they benefit from open source and give often
the code changes most likely bugfixes to this imported code back.
Unlike most GPL people we're happy with that especially we do not require
them to release any of their own code. Sure their WAFL file system is cool
but even in my wildest dreams I would not require them to publish their
code just because the used some of my code.
-- 
:wq Claudio
-


From: Theodore Tso <tytso@...>
Subject: Re: Wasting our Freedom
 [1]Date: Sep 17, 9:34 am 2007

On Mon, Sep 17, 2007 at 02:55:54PM +0200, Claudio Jeker wrote:
> Wohoho! Slow here please. NDA have nothing to do with licenses and
> especially with copyright. NetApp even though their stuff is under their
> copyright and license does hopefully not modify the copyrights of imported
> BSD/ISC code. That would be against the law and I hope their leagal
> departement is smart enough to not do this mistake especially because the
> BSD license those not hinder them in any way.

Yes, NDA doesn't have anything to do with license and copyrights, and
I never said that NetApp is modfying a copyright; but they *are*
putting a proprietary copyright license on their modifications ---
which is exactly what the Linux wireless developers had proposed to do
(modulo mistakes about removing copyright notices and attribution
which have already been acknowledged and fixed), except instead of
using a proprietary license which means you'll never see the WAFL
sources (at least without signing an NDA and acknowledging their
proprietary copyright license over their changes), it will be under a
GPL license with which you have philosophical differences, but still
allows you to see the source.

> Finally most companies know they benefit from open source and give often
> the code changes most likely bugfixes to this imported code back.
> Unlike most GPL people we're happy with that especially we do not require
> them to release any of their own code. Sure their WAFL file system is cool
> but even in my wildest dreams I would not require them to publish their
> code just because the used some of my code.

So why are you complaining when people want to use some of your code
and put the combined work under a mixed BSD/GPL license?  You can't
use WAFL; you can't use the GPL'ed enhancements.  What's the
difference between those two cases?  Somehow a mixed BSD/Proprietary
license is better?

    	    	     	  	  	- Ted
-


From: Claudio Jeker <cjeker@...>
Subject: Re: Wasting our Freedom
 [1]Date: Sep 17, 3:23 pm 2007

On Mon, Sep 17, 2007 at 09:34:58AM -0400, Theodore Tso wrote:
> On Mon, Sep 17, 2007 at 02:55:54PM +0200, Claudio Jeker wrote:
> > Wohoho! Slow here please. NDA have nothing to do with licenses and
> > especially with copyright. NetApp even though their stuff is under their
> > copyright and license does hopefully not modify the copyrights of imported
> > BSD/ISC code. That would be against the law and I hope their leagal
> > departement is smart enough to not do this mistake especially because the
> > BSD license those not hinder them in any way.
> 
> Yes, NDA doesn't have anything to do with license and copyrights, and
> I never said that NetApp is modfying a copyright; but they *are*
> putting a proprietary copyright license on their modifications ---
> which is exactly what the Linux wireless developers had proposed to do
> (modulo mistakes about removing copyright notices and attribution
> which have already been acknowledged and fixed), except instead of
> using a proprietary license which means you'll never see the WAFL
> sources (at least without signing an NDA and acknowledging their
> proprietary copyright license over their changes), it will be under a
> GPL license with which you have philosophical differences, but still
> allows you to see the source.
> 

You assume a lot about what NetApp did. While they can use BSD licensed
code in their system without any issue they can not slam a new copyright
on that code unless the changes create a derivative work.
If you just do an adaption of the code you have no right to add an
additional copyright. You need to make substantial extensions to the
original work. Now adapting code to make it run under linux is in my
opinion not a substantial work. It can be compared to translate a book to
a different language -- which neither allows you to assign copyright on
the result.
I very much doubt that WAFL is a simple adaption of UFS/FFS. So it should
be clear that this work has it's own copyright. Maybe some parts of their
code is using BSD work that they just adapted. On that code they can not
add an additional copyright as the modifications are not substantial
enough.

> > Finally most companies know they benefit from open source and give often
> > the code changes most likely bugfixes to this imported code back.
> > Unlike most GPL people we're happy with that especially we do not require
> > them to release any of their own code. Sure their WAFL file system is cool
> > but even in my wildest dreams I would not require them to publish their
> > code just because the used some of my code.
> 
> So why are you complaining when people want to use some of your code
> and put the combined work under a mixed BSD/GPL license?  You can't
> use WAFL; you can't use the GPL'ed enhancements.  What's the
> difference between those two cases?  Somehow a mixed BSD/Proprietary
> license is better?
> 

Because they put their copyright plus license on code that they barely
modified. If they would have added substantial work into the OpenHAL code
and by doing that creating something new I would not say much.

All the comercial code I have ever seen did not do this stunt of adding a
new copyright and license to barely modified files. Perhaps the "evil"
companies have more ethics or better understanding of copyright.

-- 
:wq Claudio
-


From: Theodore Tso <tytso@...>
Subject: Re: Wasting our Freedom
 [1]Date: Sep 17, 4:43 pm 2007

On Mon, Sep 17, 2007 at 09:23:41PM +0200, Claudio Jeker wrote:
> Because they put their copyright plus license on code that they barely
> modified. If they would have added substantial work into the OpenHAL code
> and by doing that creating something new I would not say much.

Number 1, some of the Linux wireless developers screwed up earlier
versions.  No denying that, the problems were pointed out during the
patch reviewed problem, AND THEY WERE FIXED.

Number 2, if you take a look at their latest set of changes (which
have still not been accepted), the HAL code is under a pure BSD
license (ath5k_hw.c).  Other portions are dual licensed, but not the
HAL --- if people would only take a look at

http://git.kernel.org/?p=linux/kernel/git/linville/wireless-dev.git;a=tree;f=drivers/n... [2]

And yet, the BSD folks seem to continue to nurse the above mantra
(which was true, but quickly corrected) combined with the "and the
Linux folks aren't listening", which is manifestly not true.  We might
not agree with everything you are saying, and we might think you're
being highly hypocritical, but we are listening.

> All the comercial code I have ever seen did not do this stunt of adding a
> new copyright and license to barely modified files. Perhaps the "evil"
> companies have more ethics or better understanding of copyright.

In the original BSD 4.3 code, if I recall correctly, /bin/true was 12
lines of AT&T copyright and the standard "this is proprietary
non-published trade secret" legalease with the standard threats of
bazillions and bazillions of damage due to AT&T's irreparable harm if
the file was ever disclosed....  followed by "exit 0".  :-)

Personally, I find that issues of copyright are much more easily
discussed if people keep a sense of balance and humor.  

						- Ted
-


From: Henning Brauer <henning@...>
Subject: Re: Wasting our Freedom
 [2]Date: Sep 18, 5:00 am 2007

* Theodore Tso <tytso@mit.edu> [2007-09-17 23:04]:
> Number 2, if you take a look at their latest set of changes (which
> have still not been accepted), the HAL code is under a pure BSD
> license (ath5k_hw.c).  Other portions are dual licensed, but not the
> HAL

if that is true and stays that way - excellenty!

-- 
Henning Brauer, hb@bsws.de [3], henning@openbsd.org [4]
BS Web Services, http://bsws.de [5]
Full-Service ISP - Secure Hosting, Mail and DNS Services
Dedicated Servers, Rootservers, Application Hosting - Hamburg & Amsterdam
-


From: Marco Peereboom <slash@...>
Subject: Re: Wasting our Freedom
 [5]Date: Sep 18, 7:29 am 2007

Now if they'd fix the copyright message to only mention Reyk all would
be good.

On Tue, Sep 18, 2007 at 11:00:13AM +0200, Henning Brauer wrote:
> * Theodore Tso <tytso@mit.edu> [2007-09-17 23:04]:
> > Number 2, if you take a look at their latest set of changes (which
> > have still not been accepted), the HAL code is under a pure BSD
> > license (ath5k_hw.c).  Other portions are dual licensed, but not the
> > HAL
> 
> if that is true and stays that way - excellenty!
> 
> -- 
> Henning Brauer, hb@bsws.de [6], henning@openbsd.org [7]
> BS Web Services, http://bsws.de [8]
> Full-Service ISP - Secure Hosting, Mail and DNS Services
> Dedicated Servers, Rootservers, Application Hosting - Hamburg & Amsterdam
> 
-


From: Theodore Tso <tytso@...>
Subject: Re: Wasting our Freedom
 [8]Date: Sep 18, 8:56 am 2007

On Tue, Sep 18, 2007 at 06:29:48AM -0500, Marco Peereboom wrote:
> Now if they'd fix the copyright message to only mention Reyk all would
> be good.

It *does* mention Reyk, if you would bother to look.  The thing which
Theo is kvetching about, and which apparently is enough to cause the
*BSD zombies to start attacking without actually _checking_ _for_
_themselves_ is whether or not Jiri and Nick did enough to work so
they should have their names listed in the headers.  In other words,
all of the megabytes and megabhytes of flamewar is over these two
lines:

> * Copyright (c) 2006-2007 Nick Kossifidis <mickflemm@gmail.com>
> * Copyright (c) 2007 Jiri Slaby <jirislaby@gmail.com>

Petty, isn't it?  Let's just say it's b.s. like this which is why, 16
years ago, I decided to work with Linux instead of BSD.

						- Ted

P.S.  And yes, before those two lines is:

> * Copyright (c) 2004-2007 Reyk Floeter <reyk@openbsd.org>

and after those two lines is the BSD permission notice.
-


From: Marco Peereboom <slash@...>
Subject: Re: Wasting our Freedom
 [8]Date: Sep 18, 1:15 pm 2007

On Tue, Sep 18, 2007 at 08:56:47AM -0400, Theodore Tso wrote:
> On Tue, Sep 18, 2007 at 06:29:48AM -0500, Marco Peereboom wrote:
> > Now if they'd fix the copyright message to only mention Reyk all would
> > be good.
> 
> It *does* mention Reyk, if you would bother to look.  The thing which
> Theo is kvetching about, and which apparently is enough to cause the
> *BSD zombies to start attacking without actually _checking_ _for_
> _themselves_ is whether or not Jiri and Nick did enough to work so
> they should have their names listed in the headers.  In other words,
> all of the megabytes and megabhytes of flamewar is over these two
> lines:
> 
> > * Copyright (c) 2006-2007 Nick Kossifidis <mickflemm@gmail.com>
> > * Copyright (c) 2007 Jiri Slaby <jirislaby@gmail.com>

Its simple; this is illegal.  Those two fruitcakes didn't do jack and
can therefore not claim copyright.  Would be the same as me taking the
linux kernel and adding myself to each file.  I am pretty sure some
people would be up in arms about that.

> 
> Petty, isn't it?  Let's just say it's b.s. like this which is why, 16
> years ago, I decided to work with Linux instead of BSD.

I don't make the laws and I did not break any so you call it whatever
you like.

> 
> 						- Ted
> 
> P.S.  And yes, before those two lines is:
> 
> > * Copyright (c) 2004-2007 Reyk Floeter <reyk@openbsd.org>

So what?  you don't get a cookie for abiding the law.

> 
> and after those two lines is the BSD permission notice.

Where it belongs.  Again you don't get a cookie for doing what you are
supposed to do.

Just like you don't get a cookie for taking care of your kids; you're
supposed to do that.
-

From: Theodore Tso <tytso@...>
Subject: Re: Wasting our Freedom
 [8]Date: Sep 17, 7:47 pm 2007

On Mon, Sep 17, 2007 at 03:06:37PM -0700, Can E. Acar wrote:
> The only remaining issue is whether Nick & Jiri have enough
> original contributions to the code to be added to the Copyright.
> 
> I believe this needs to be resolved between Reyk and Nick and Jiri.
> 
> The main reason of Theo's message, linked earlier, was the
> lack of response on this issue. It seems that the SFLC is
> dismissing this issue, and thus stalling its resolution by the
> developers.

OK, so all of this flaming, and digging up of "licenses ripped off",
and chaff thrown up in the air, and moaning and bewailing about
"theft", is now down to these two lines regarding Nick and Jiri:

> * Copyright (c) 2004-2007 Reyk Floeter <reyk@openbsd.org>
> * Copyright (c) 2006-2007 Nick Kossifidis <mickflemm@gmail.com>
> * Copyright (c) 2007 Jiri Slaby <jirislaby@gmail.com>
> [snip rest of BSD license]

It's under a BSD license; what material difference does those two
lines make, for goodness sake?  It's under a BSD license, so it's not
like anything won't be "given back".  Whether or not they have made
enough for changes is really a question for the lawyers, and may
differ from one jurisdiction to another --- but whether or not they
have now, or maybe will not make until later --- does it really make a
difference?  Who gets hurt if someone gets they get a bit more credit
than they deserve?  Certainly the most important thing is that Reyk is
given proper credit, right?

					- Ted
-


From: Can E. Acar <can.acar@...>
Subject: Re: Wasting our Freedom
 [8]Date: Sep 18, 2:55 pm 2007

Theodore Tso wrote:
> On Mon, Sep 17, 2007 at 03:06:37PM -0700, Can E. Acar wrote:
>> The only remaining issue is whether Nick & Jiri have enough
>> original contributions to the code to be added to the Copyright.
>>
>> I believe this needs to be resolved between Reyk and Nick and Jiri.
>>
>> The main reason of Theo's message, linked earlier, was the
>> lack of response on this issue. It seems that the SFLC is
>> dismissing this issue, and thus stalling its resolution by the
>> developers.
> 
> OK, so all of this flaming, and digging up of "licenses ripped off",
> and chaff thrown up in the air, and moaning and bewailing about
> "theft", is now down to these two lines regarding Nick and Jiri:

Yes, quite an improvement, considering how it all started, dont you think?
Pity it took so much pushing and dragging to get people to do the right
thing.
There is just one little step to go. It is can not be that hard, can it?


>> * Copyright (c) 2004-2007 Reyk Floeter <reyk@openbsd.org>
>> * Copyright (c) 2006-2007 Nick Kossifidis <mickflemm@gmail.com>
>> * Copyright (c) 2007 Jiri Slaby <jirislaby@gmail.com>
>> [snip rest of BSD license]
> 
> It's under a BSD license; what material difference does those two
> lines make, for goodness sake?  It's under a BSD license, so it's not
> like anything won't be "given back".

As a programmer, you sure would know what difference any "two lines"
would make on your program. When it comes to law, you seem to lose
that intuition.


> Whether or not they have made
> enough for changes is really a question for the lawyers, and may
> differ from one jurisdiction to another
> --- but whether or not they have now, or maybe will not make until later ---

Well, they can add their names *anywhere* in the whole file, *except*
these two lines. See, these lines have a whole different meaning
when it comes to laws.  When they make sufficient contribution, they
sure can add their names. What is so difficult to understand here?

I have seen some academic papers, where the first author did all the work,
the second author is the professor who funded the work, and the remaining
five "authors" are just coming along for a ride.  You know what the
difference is? The original author *allows* them to put their names as
authors.

Here, you are adding names, and say "why not". It is both unethical and
illegal.

> does it really make a
> difference?  Who gets hurt if someone gets they get a bit more credit
> than they deserve?  Certainly the most important thing is that Reyk is
> given proper credit, right?

As long as it is not a derived work, Reyk gets to decide who is in the
copyright. Even if it is a derived work, it is polite to ask.

If, at the beginning, Nick and Jiri, and others asked Reyk to be included
in the Copyright for the adaptation work they did on the HAL. I do not
believe he would have refused. I can not talk for him, but things would
be have been resolved in a much nicer and positive way.

Instead they chose to push Reyk for months to dual license his code,
then attempted to change the whole license. Even now, when there is
just a small issue left, people are still dragging and resisting.

I am really disappointed by all this.  I would have expected that once
such a patch is suggested (let alone being committed to some public place)
some senior/respected/responsible Linux person would tell them what they
are doing is wrong.  Right from the start.  I now see this is not how
things work around here.  Senior developers are either too busy or
reluctant to get their hands dirty. In OpenBSD, (which, I accept is a
much smaller community) when one developer does something wrong,
the clue stick is there to be used by one of the more experienced
developers.
Which means, issues are resolved quickly and with much less pain.


Can

-- 
In theory, there is no difference between theory and practice.
But, in practice, there is.
-


From: Jeff Garzik <jgarzik@...>
Subject: Re: Wasting our Freedom
 [8]Date: Sep 18, 3:37 pm 2007

Can E. Acar wrote:
> As long as it is not a derived work, Reyk gets to decide who is in the
> copyright. Even if it is a derived work, it is polite to ask.

Additional work went in, thus additional copyrights were added.


> I am really disappointed by all this.  I would have expected that once
> such a patch is suggested (let alone being committed to some public place)

In a purely open development environment, even personal developer trees 
are made public.  That's the way we _want_ development to occur.  Out in 
public, with a full audit trail.

Your implied ideal scenario is tantamount to guaranteeing that mistakes 
are never committed to a public repository anywhere.  Mistakes will 
happen.  Even legal mistakes.  In public.


> some senior/respected/responsible Linux person would tell them what they
> are doing is wrong.  Right from the start.

What you are seeing is an example of mistakes that were caught in 
review, and corrected.

That's how any scalable review process works...  the developer reviews 
his own work.  the team reviews the developer's work.  the maintainer 
reviews the team's work.  the next maintainer reviews.  and so on, to 
the top.

	Jeff


-