| Software Freedom Law Center resolves BSD-GPL wireless code dispute |
Sep. 27, 2007
The Software Freedom Law Center, provider of pro bono legal services to protect and advance free and open-source software, announced on Sept. 27 that it has carefully reviewed the lineage of the open-source Atheros wireless driver for Linux and determined that portions of it can be distributed under the ISC license (also known as the two-clause BSD license).
What ordinarily might have been an issue barely worth noticing became a loud, public dispute in Linux and BSD circles. The conflict began when some Linux developers proposed on the Linux Kernel mailing list that some Atheros wireless device drivers -- some of which were already licensed under a dual-BSD/GPL license, while the rest were covered by a modified BSD license -- be re-licensed under a pure GPLv2 license.
The SFLC, in New York, explained in a statement that "the licensing situation for the Atheros driver is complex because much of it was originally derived from an OpenBSD project called ar5k. This original code is licensed under the ISC license, but Linux code is typically licensed under the GNU General Public License (GPL)."
The BSD position on this is that if the GPL is added to BSD-licensed code, it makes it impossible to share the code back with its original authors since the GPL is more restrictive than the BSD. In short, as OpenBSD maintainer Deanna Phillips put it on OpenBSD Journal, the Linux developers "seem to think that they can strip the BSD license right out of it."
After an exchange of angry mailing list postings, Theo de Raadt, head and founder of OpenBSD, said that Eben Moglen, chairman of the SFLC and co-author of the GPLv3, "started to 'improve' what Linux people are doing wrong with licensing, and he asked me to give him pause, so his team could work."
De Raadt, however, was not at all pleased with the Linux community. He continued, "GPL fans said the great problem we would face is that companies would take our BSD code, modify it and not give back. Nope -- the great problem we face is that people would wrap the GPL around our code, and lock us out in the same way that these supposed companies would lock us out. Just like the Linux community, we have many companies giving us code back, all the time. But once the code is GPL'd, we cannot get it back.
"Ironic."
Not quite two weeks later, on Sept. 13, de Raadt 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."
He went on to state, "In their zeal to get the code under their own license, some of these Linux wireless developers have broken copyright 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." Furthermore, he wrote, "I believe these people have received bogus advice from Eben Moglen regarding how copyright law actually works in a global setting."
In the heated online conversations that followed, Moglen replied to these accusations. "What has happened is that people who do not have full possession of the facts and have no legal expertise -- people whom from the very beginning we have been trying to help -- have made irresponsible charges and threatened lawsuits, thus slowing down our efforts to help them. It might be useful to recall the first stage of this process, when OpenBSD developers were accused of misappropriating Atheros code, and SFLC investigated and proved that no such misappropriation had occurred? Wild accusations about our motives are even more silly than they are false."
There the matter has sat until now. According to the SFLC, "All the copyright holders of the Linux ath5k-driver code, derived from ar5k, have been contacted and have agreed to license their changes under the ISC license, thus allowing improvements to be re-incorporated into OpenBSD. One of the three historical branches of the code reviewed by SFLC, however, included portions that are only licensed under the GPL, and SFLC has determined that it would be very difficult to re-incorporate that code into OpenBSD."
To share its knowledge with the FOSS and legal communities and to share background regarding its analysis, SFLC also released two documents. One document, Maintaining Permissive-Licensed Files in a GPL-Licensed Project: Guidelines for Developers, is a set of guidelines for developers who wish to incorporate code with a permissive license, such as ISC, into a GPL-licensed project. The other paper, Originality Requirements under U.S. and EU Copyright Law, looks at the legal standards of originality with regard to computer programs under U.S. and international copyright law.
There is also a detailed document, Code Analysis of the Linux Wireless Team's ath5k Driver, explaining the SFLC's review of the Linux Wireless team's ath5k driver.
"We're pleased to help bring clarity to the Linux Wireless Developers as they work towards inclusion of their code in the Linux kernel," Karen Sandler, SFLC counsel, said in a statement.
At the time this story was completed, Linux-Watch had been unable to get a comment from de Raadt about his thoughts on the SFLC decision. Comments about the SFLC statement on OpenBSD Journal's copy of the document were generally positive.
—Steven J. Vaughan-Nichols
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