PhxBUG - Phoenix BSD User Group

Note: Story now on the OpenBSD Journal.

Theo de Raadt writes to misc@openbsd.org:

Reyk and I have decided to show something from the private handling of
this Atheros copyright violation issue. It has been like pulling teeth
since (most) Linux wireless guys and the SFLC do not wish to admit
fault.  I think that the Linux wireless guys should really think hard
about this problem, how they look, and the legal risks they place upon
the future of their source code bodies.  There are lessons to be
learned here -- be cautious because there is no such thing this
"relicensing" meme that your user community spreads.

In their zeal to get the code under their own license, some of these
Linux wireless developers have broken copryright law repeatedly.  But
to even get to the point where they broke copyright law, they had to
bypass a whole series of ethical considerations too.

I believe these people have received bogus advice from Eben Moglen
regarding how copyright law actually works in a global setting.
Perhaps the internationally based developers should rethink their
approach of taking advice from a US-based lawyer who apparently knows
nothing about the Berne Convention.  Furthermore, those developers are
getting advice freely from ex-FSF people who have formed an agency
with an agenda.  Some have suggested that the SFLC was formed to avoid
smearing the FSF with dirt whenever the SFLC does something risky.
Don't get trampled; there could be penalties besides looking unethical
and guilty.  Be really cautious, especially with things like this
coming to mess with our communities:
    http://www.linux-watch.com/news/NS8560536106.html

Below, you can find a mail was sent by me (in consultation with Reyk)
on Sep 5 to various people in the Linux wireless developer community
and their advisors in the SFLC.  Inside that message, you can find
another message from Sep 1 that they never replied to.

On Sep 5 there was finally a reply from Eben Moglen, but it added
nothing constructive to the process, except that Eben Moglen admitted
that the Linux developer's had done an "Adaptation"; I will show one
particular sub-sentence from Eben's reply mail:

    "we wish to secure as much of the work done to adapt Reyk's
    code for use with the Linux kernel as the authors will
    permit, [...]"

I don't think Eben wanted to say that.  In copyright law, the word
"adapt" has a very clear meaning.

From our perspective, we see the SFLC giving bad advice three times to
(some subset of) the Linux wireless developers (who they call their
"clients", after apparently more than a year of consultation):

The first advice given by the SFLC resulted in Luis, Jiri, and Nick
simply replacing Reyk's ISC license with the GPL around large parts of
Reyk's code in various repositories.  (Let us not concern ourselves
with Sam's code for now).  That occurred roughly around August 25.
Our developers have cloned those public/published repositories, though
some of them have now been taken offline by the developers who
operated them.

The second advice given by the SFLC was that a GPL can be wrapped
around another author's work.  That advice was re-posted by John
Linville on Sep 5 at http://lwn.net/Articles/248223/ but it
unfortunately says nothing about _when_ an author of a derivative
receives the right to do such a thing.  The SFLC waives that concern
away.  But that is the clincher -- by law, a new person doing small
changes to an original work is not allowed to assert copyright, and
hence, gains none of the rights given by copyright law, and hence,
cannot assert a license (copyright licenses surrender a subset of the
author's rights which the law gives them; the licenses do not not
assert rights out of thin air).

You can see this 'relicensing approach' is still published in files in
the repository at http://madwifi.org/browser/branches/ath5k, for
instance see http://madwifi.org/browser/branches/ath5k/ath5k_phy.c.
This repository has also been cloned by some of our developers to show
proof of publishing.

Then my mail (shown below) arrived at the SFLC.  There has been one
reply from Eben to that mail, as noted above.  Naturally I am tempted
to show more mails...

It appears that the mail I sent had some effect; because it seems that
the developers received new advice from SFLC -- a third approach.
Linville did not even follow what he re-posted from the SFLC on the
5th, but took an even more conservative approach.  The Linville
repository replaced Jiri's repository (which Jiri disconnected), and
all of Reyk's original work now appeared with only an ISC license as
Reyk had it.  In this case Nick and Jiri have been added as co-owners
of the copyright, though.

    http://git.kernel.org/?p=linux/kernel/git/linville/wireless-dev.git;a=blob;f=drive \
rs/n%20%5Cet/wireless/ath5k_hw.c;h=07ad1278b39037caf68825cabcf9469db059dfc8;hb=everyth \
ing

    http://git.kernel.org/?p=linux/kernel/git/linville/wireless-dev.git;a=tree;f=drive \
rs/n%20\et/wireless;h=2d6caeba0924c34b9539960b9ab568ab3d193fc8;hb=everything

Those files are still invalidly being distributed -- Nick and Jiri did
not proveably do enough original work to earn copyright on a
derivative work, since their work is just an adaptation.  It is in
their best interest to talk to the original author in respectful tones
and have him recognize their work.  A lawyer like Eben Moglen will not
help at this point since his misrepresentations have caused all this
grief to begin with.

Now it may seem petty to be pointing out the above, but these Linux
wireless developers have ignored the ethical considerations of
honouring the author for his work, and then violated the law _3 times_
under advice from a ex-FSF laywer.  Come on.  By that point someone
should at least be offering the author an apology, and who cares if it
makes the lawyer look like he's incompetent.  The only thing he is
competent at is convincing a bunch of programmers to follow his agenda
and walk into a legal mess.

If those developers who live in Europe want a court case in the EU
where the original author lives, they should perhaps consider that an
American lawyer who has made three bogus assessments in a row
regarding a criminal code won't be able to help them in that
jurisdiction.  Furthermore, the American developers involved should
recognize that copyright law cases decided in one country apply to
other countries.

By the way, Richard Stallman eventually replied with the one liner
"The FSF is not involved in this dispute."

-----------

To: Eben Moglen 
cc: norwood@softwarefreedom.org, bkuhn@softwarefreedom.org,
        fontana@softwarefreedom.org, karen@softwarefreedom.org,
        mcgrof@gmail.com, jirislaby@gmail.com, mickflemm@gmail.com,
        rms@gnu.org
cc: reyk@cvs.openbsd.org
cc: jeremy@kerneltrap.org
Subject: Re: Derivative Works test 
In-reply-to: Your message of "Sat, 01 Sep 2007 14:17:55 MDT."
             <200709012017.l81KHtX8030094@cvs.openbsd.org> 
Date: Wed, 05 Sep 2007 11:59:06 -0600
From: Theo de Raadt 

Greetings,

I see that the Linux wireless developers and the SFLC have not replied
to my previous mail (perhaps suspecting this shields them in some
way), so I include it below, so that you have a second chance to read
it.  There is still time for you to do what is right.

Now that the files can be found in a PUBLISHED repository, some people
are now reading the files of Reyk's which you have wrapped a GPL
license around.  Since it is a published repository, it is obviously
no longer a proposition.  Publication has perhaps occured.

That repository is at

	http://madwifi.org/browser/branches/ath5k

We have made copies of this repository, so there is no need to rush
and take it down.

At first glance those changes sure looks like a translation to Linux,
a re-edit for formatting, and it looks like the "authors" add
basically nothing that can be considered original authorship, and thus
nothing makes this a derivative work valid for placing a new copyright
around.  Since you prefer to view these things from a US viewpoint,
I will point you at a document you are more familiar with:

	http://www.copyright.gov/circs/circ14.html

In particular, note this part of a paragraph:

    To be copyrightable, a derivative work must be different enough
    from the original to be regarded as a new work or must contain a
    substantial amount of new material. Making minor changes or
    additions of little substance to a preexisting work will not qualify
    the work as a new version for copyright purposes. The new material
    must be original and copyrightable in itself.

And, note further:

    The copyright in a derivative work covers only the additions, changes,
    or other new material appearing for the first time in the work. It
    does not extend to any preexisting material and does not imply a
    copyright in that material.

Furthermore, I urge you to understand that Reyk is a German citizen,
and that Germany (like the rest of the world outside the US) impliments
the Berne convention much more strictly than the US does, including in
particular these details which come under the subsection of Moral Rights.
German law would apply in this case, because that is where Reyk
would file against the Linux developers in question.

Some of those files which have had a GPL placed on them are Reyk's
work, with basically only a few small editorial changes, and then a
GPL placed at the top.  That is not legal, and we ask you stop
distributing them immediately.  I suspect that you are being misled
by the SFLC in legal matters, perhaps because some of you have not
given the SFLC the true facts about how minor your changes are, or
perhaps because the SFLC has an agenda.

I think that a further study by you and the SFLC will convince you
that the changes do not create an original work, and thus, are not
acceptable for assertion of copyright.

I sure hope that you are not making a mistake of placing a copyright
on something in an illegal fashion.  There are penalties, and Linux
will suffer greatly from the PR.

I urge you to reply.


> Linux wireless developers, SoftwareFreedom, and a welcome too
> Richard.
> 
> Regarding http://marc.info/?l=linux-wireless&m=118857712529898&w=2
> 
> 1.  Are you prepared to go to court to test if the work you
> have done lets you put copyright on those files?  Your
> contribution is, we must all agree, rather small compared
> to Reyk's considerable reverse engineering and
> authorship contribution.
> 
> I will remind you of:
> 
> 	http://www.copyright.gov/circs/circ14.html#derivat
> 
> But please be aware that the authors of the work live in various
> countries, in particular Reyk lives in Germany.
> 
> 2.  Have you read and taken to heart the following paragraph from the
> GPL?
> 
> 	For example, if you distribute copies of such a program, whether
> 	gratis or for a fee, you must give the recipients all the rights that
> 	you have.  You must make sure that they, too, receive or can get the
> 	source code.  And you must show them these terms so they know their
> 	rights.
> 
> Why do you not pass the rights you have on to your brother you got
> it from?  Is that not the road to fanaticism?
> 
> 3.  Would you like to reconsider the monopolistic and anti-community
> action you are taking by appropriating a large body of BSD licensed
> code gotten from your brother in the community, and purposefully
> not giving back to your brother?  Or are you that greedy?
> 
> 
> Please let me know, so that I can proceed.  It appears that we have
> offers for legal representation in Germany.
> 
> I would be happy if you changed your mind based on any of the points
> above, you don't need to accept them all.  You can decide that you are
> (1) unwilling to participate in a court case, (2) believe in your own
> ethos, or (3) generous and sharing members of this planet and
> community.
> 
> Thank you for your rapid attention to this mail.