"Based on the new guidelines posted by the SFLC on 'Maintaining Permissive-Licensed Files in a GPL-Licensed Project: Guidelines for Developers', specifically section 5, we are introducing a new tag for use with patches which deal with files licensed under permissive licenses (BSD, ISC) on Linux wireless in our larger GPL project, the Linux kernel," explained Luis Rodriguez in an email titled, "new 'Changes-licensed-under' tag introduced for Linux-wireless". The web pages linked in the email appear to be an official response by the SFLC regarding the recent BSD vs. GPL licensing controversy surrounding the Atheros wireless device driver. Luis continued:

"Although some developers have a practice of implying their patches for a permissive licensed file abides by the respective permissive license of the file being patched, and although some changes are obviously not copyrightable, we would like to 'err on the side of caution', take the advice from SFLC, and introduce Changes-licensed-under in order to help the BSD family reap benefits of our contributions to permissive licensed files."

There were only a few brief replies to Luis' email. Stephen Hemminger suggested a simpler solution, "no, please don't [go] down this legal rat hole. It would cause bullshit like people submitting dual licensed patches to the scheduler or GPL only patches to the ath5k or ACPI code. Instead, add a section to Documentation/SubmittingPatches that clearly states that all changes to a file are licensed under the same license as the original file." Krzysztof Halasa pointed out that this was already the case, quoting a line from the Developer's Certificate of Origin contained in the SubmittingPatches file which says, "the contribution was created in whole or in part by me and I have the right to submit it under the open source license indicated in the file".

Author of OpenBSD's hardware driver layer for wireless Atheros devices, Reyk Floeter, sent a query to the Linux Kernel mailing list regarding the recent licensing debate surrounding the Linux "ath5k" driver, "I'm still trying to get an idea about the facts and the latest state of the incidence that violated the copyright of my code, because I just returned from vacation." He continued:

"I'm very disappointed about this and I hope that it was a mistake, because it is very unfair and malicious against me and the OpenBSD community. I invested a lot of time to write the code and to make it work with as many chipsets as possible. And during the last years, the OpenBSD community helped to test and to improve the driver. I always liked the idea to port it to other operating systems, but now somebody harmed these efforts by violating the license."

Reyk explained that he has cooperated with developers porting his free Atheros driver from OpenBSD to other operating systems, "because it is a clear sign against hardware companies attacking the free software 'community' by releasing binary-only driver objects instead of free code or hardware documentation." He explained that he had worked with the developers who ported his driver to Linux as "OpenHAL", "we exchanged ideas, bug fixes, and small code snippets. They sent me some bug reports and I also looked at their changes and reported some functional problems. This was possible because they kept the license in place." Finally he expressed concern that this would no longer be possible if the license was changed, "somebody wants to cancel any options to cooperate by locking me out with a prepended GPL and an invalid copyright on top of it."

In a recent series of patches posted to the Linux Kernel mailing list, it was proposed that some imported Atheros wireless device drivers be re-licensed, some from a dual-BSD/GPL license, others from a modified BSD license, all to a pure GPLv2 license. Christoph Hellwig asked, "is this really a good idea? Most of the reverse-engineering was done by the OpenBSD folks, and it would certainly be helpful to work together with them on new hardware revisions, etc.." Luis Rodriguez suggested that there was no choice, "technically the best we can do is to leave the license as dual licensed, but keep in that technically that means nothing and is just for show, the GPL is what would apply as its derivative work and is the most restrictive license."

The patch series was also discussed on OpenBSD's -misc mailing list where it was asked, "is Reyk [Floeter] and others working on this drivers code dual licensed (from the diff it doesn't seem like it is, since I see a BSD 3 Clause)? Also say I submit a patch for this driver, does that mean this will have to be dual licensed also or can I choose if it is BSD 3 Clause or GPLv2?" Theo de Raadt replied pointing out that there are two parts to the driver, one part written by Reyk Floeter, and another part written by Sam Leffler, "Reyk's code is *NOT* dual-licensed under the GPL. He has explicitly stated that his code is not dual-licenced. The file have no GPL on them. He's the author, he said so. None else can add a GPL to it." He went on to note that the files written by Sam Leffler are dual licensed with the clause, "alternatively, this software may be distributed under the terms of the GNU General Public License ("GPL") version 2 as published by the Free Software Foundation," stressing that 'alternatively' means 'or', "that means that if anyone makes changes to that file and distributes it, after their changes are in the file then EITHER license will apply."