Relicensing: what's legal and what's right

Posted Sep 5, 2007 0:30 UTC (Wed) by nofutureuk (subscriber, #3116)
Parent article: Relicensing: what's legal and what's right

I am certainly very disappointed about this article's quality and also about the comment quality. Let me explain:

The article title actually is pointing into the right direction: the real point about this issue is that software licensing does not necessarily match ethical expectations of the person using that license.

What is important to consider, is not what is legal in the end, but why we/they chose to use open-source licensing in the first place. When I personally have to chose a license, I think about my personal, subjective ethical expectations first (and other considerations of course). Thereafter, I realize that no existing license exists that matches these expectations. I also realize that no law in any country actually matches the complete spectrum of ethical expectations a society might have.

So in ethical terms, a license is a means to express what you expect people to do with it (beneath the obvious legal enforcing stuff).

One can ethically do the wrong thing while still respecting the law, right? That happens all the time. But no one would considers that to be a good thing, and that is why every democracy has to fix/change laws and have courts making decisions not only based on binary tree decisions.

This is not about finding out who is right, or which license is better, but what our ethical view tells us what is right. I consider everything else to be a bit too fanatic.

I consider that in this scenario, keeping the driver under the upstream license (in an open-source environment) pretty much the ethical correct decision to make.

And thanx Theo for calling out brotherhood with Linux. That's what this is about. Not who is right or wrong!@!@&*(!!!

Give and take! May the best code win, not the best license!

p.s. (sarcastic): the apple public source license is super-similar to the GPL btw, really almost like just replacing company names FSF with Apple. I think too many people see devils here and don't know shit about what they are talking about (probably myself included).

to post comments

Relicensing: what's legal and what's right

Posted Sep 5, 2007 9:13 UTC (Wed) by dag- (guest, #30207) [Link] (17 responses)

If the sourcecode specifically allows to use any of both licenses, how is it unethical when doing that ?

I do not understand the argument of the OpenBSD people here.

If the license does not clearly states what the OpenBSD community expects, they need to modify the license. And if they want proprietary vendors to do whatever they like with the code and not give back (even if some do), but on the other hand (morally) demand from other Open Source projects to behave different. Then they should make a new license that makes it so.

It seems the OpenBSD people love to cry foul, but whenever they err, the subject is changed and no apologies. I would respect them a lot more if they were more honest in public communication.

I am grateful for the contributions they have made, but I equally disrespect them for their public noise and propaganda. Being trigger happy does not earn you any bonus-points. Quite the opposite.

Relicensing: what's legal and what's right

Posted Sep 5, 2007 11:01 UTC (Wed) by nofutureuk (subscriber, #3116) [Link] (16 responses)

yes, you are right in legal terms.

But still, if a GPL-person takes code from a BSD-person, what's the most logically ethical correct decision to make? I guess tit-for-tat / give and take.

BSD people can _never_ take any GPL code, while the other way works. Arguing that BSD must therefore change their license to something like GPL is bollocks, because the BSD people are simply liberal to businesses (and want to be). We wouldn't have a lot of good products without BSD licensed code.

I understand your point, but you are falling back to legal meaning.

p.s.: As I stated in my previous message, there are many reasons for choosing a license none will match the exact ethical expectations, which is why I often chose BSD or MIT license, because I want to able to re-use my own stuff at work, while still allowing it to be used by GPL people. GPL people are not that liberal, they are simply very often overzealous.

Relicensing: what's legal and what's right

Posted Sep 5, 2007 13:13 UTC (Wed) by dag- (guest, #30207) [Link] (6 responses)

But still, if a GPL-person takes code from a BSD-person, what's the most logically ethical correct decision to make? I guess tit-for-tat / give and take.

I do not agree. It would certainly be the nicest, but the fact that BSD was chosen as a license to me means that the developer allows you to do with it as you please. Otherwise he would have chosen another license.

So I have a big problem when now, contrary to what the license allows, they expect things that are not written in full.

Sure it is nicer, but they can not expect that. Let alone demand it. That's why I think the BSD-crowd silently envies the smartness of GPL (or a similar license).

If they loudly claim that the BSD license is more free than the GPL, than they have to face those consequences. And I think it is hypocritical to loudly provoke Linux developers (or the community as a whole) and minimize the actions of commercial/proprietary vendors (which is not as transparant). Why not just assume that the commercial interest in BSD is 1000x bigger than the Open Source community, but simply not visible ?

Relicensing: what's legal and what's right

Posted Sep 5, 2007 15:30 UTC (Wed) by nofutureuk (subscriber, #3116) [Link] (5 responses)

And I think it is hypocritical to loudly provoke Linux developers (or the community as a whole) and minimize the actions of commercial/proprietary vendors (which is not as transparant).

Taking out a license, and replacing it with a more restrictive one is the provocation here I think. but hey...

Relicensing: what's legal and what's right

Posted Sep 5, 2007 15:59 UTC (Wed) by dag- (guest, #30207) [Link] (4 responses)

Taking out a license, and replacing it with a more restrictive one is the provocation here I think. but hey...

How can it be a provocation when the license specifically and intentionally allowed to do that ?

Relicensing: what's legal and what's right

Posted Sep 5, 2007 16:03 UTC (Wed) by nofutureuk (subscriber, #3116) [Link] (3 responses)

I am not a lawyer, but I am not sure that re-licensing without explicit permission is allowed. The license is intended to allow code-reuse, not license replacement.

Relicensing: what's legal and what's right

Posted Sep 5, 2007 16:59 UTC (Wed) by dag- (guest, #30207) [Link] (2 responses)

Have you not read the above article ? Are we talking about the same incident ? What is so hard to understand in the following piece of the dual-license:

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.

This is about distributing with a different license, which is what re-licensing really is.

Relicensing: what's legal and what's right

Posted Sep 5, 2007 17:13 UTC (Wed) by nofutureuk (subscriber, #3116) [Link] (1 responses)

Have you not read the above article ? Are we talking about the same incident ? What is so hard to understand in the following piece of the dual-license: ...

Yes you are right. But I really want to emphazise on culture rather than the legality of this single patch for this driver.
Also I am unsure (and uninformed) about what other communication went on between the developers in this case. I do not want to investigate the exact happenings with this case, but point people to the fact that not the BSD licensing scheme is to blame, but the way people tend to be overzealous with pretending to know what the "right" license is for others and/or denouncing people expressing their expectations/wishes.
I am simply saddened when I see GPL zealots BLAMING BSD developers for expressing their feelings/expectations about code-sharing.

Relicensing: what's legal and what's right

Posted Sep 5, 2007 17:39 UTC (Wed) by dag- (guest, #30207) [Link]

Well, then I think your perception is influenced by the fact that most response is to the way the OpenBSD handles their communication. If you read the threads on LKML, you can clearly see that the developers are concerned about working together with upstream.

The problem in this and previous incident is the communication (read: lack of diplomacy) and the disproportion of action and reaction. How you perceive the communities comes out of that and your personal interest, I guess. I haven't seen anyone blame the BSD, nor have I seen GPL zealots in these discussions. I don't think that has been the core of the argument.

Relicensing: what's legal and what's right

Posted Sep 5, 2007 13:36 UTC (Wed) by jmtapio (guest, #23124) [Link] (5 responses)

BSD people can _never_ take any GPL code,

Yes they can. There are only a handful of wireless developers around. No matter what license the Linux driver has been placed under, it really should not be too difficult to just send occasionally an email to the author of interesting fixes and ask "Hey, could we distribute that fix of yours with the BSD license on OpenBSD?" If there is a real "brotherhood", I would expect most developers to say yes to a request like that. And if there is a good spirit of cooperation, some developers might even offer fixes to both projects with their specific licenses even without asking.

What I don't understand in this odd flamefest is that BSD developers do not trust that the GPL developers would give back if the BSD license is not explicitly kept with the files (as if the BSD license would make people give back anyways).

Arguing that BSD must therefore change their license to something like GPL is bollocks, because the BSD people are simply liberal to businesses (and want to be). We wouldn't have a lot of good products without BSD licensed code.

What I find offensive is that some BSD people seem to have a double standards when comparing GPL and proprietary derivatives. I hope that it is just an illusion, but that is still the way how many bystanders are seeing this situation. I can understand that BSD people do not want to enforce legally certain expectations, but it would be nice if the "ethical" expectations would not discriminate people based on the license.

Relicensing: what's legal and what's right

Posted Sep 5, 2007 15:44 UTC (Wed) by nofutureuk (subscriber, #3116) [Link] (4 responses)

Yes they can. There are only a handful of wireless developers around. No matter what license the Linux driver has been placed under, it really should not be too difficult to just send occasionally an email to the author of interesting fixes and ask "Hey, could we distribute that fix of yours with the BSD license on OpenBSD?" If there is a real "brotherhood", I would expect most developers to say yes to a request like that. And if there is a good spirit of cooperation, some developers might even offer fixes to both projects with their specific licenses even without asking.

I didn't say asking wasn't an option. But we are discussing a scenario where exactly the step of *asking* was left out. Asking applies to both parties.

What I don't understand in this odd flamefest is that BSD developers do not trust that the GPL developers would give back if the BSD license is not explicitly kept with the files (as if the BSD license would make people give back anyways).

There is no odd flamefest, just a lot of overzealous people talking about legality instead of culture. As I said, even legal actions can be morally bad.

What I find offensive is that some BSD people seem to have a double standards when comparing GPL and proprietary derivatives. I hope that it is just an illusion, but that is still the way how many bystanders are seeing this situation. I can understand that BSD people do not want to enforce legally certain expectations, but it would be nice if the "ethical" expectations would not discriminate people based on the license.

Yes, I think the BSD license has sort of a double standard, but that's fine. I don't see any reason why one should not be open to that, unless being overzealous or super-fanatic on one license. Each license out there has a reason for existing.
Not everybody wants to enforce his own ethical views on others. What I find offensive is that a lot of people seem to attack the BSD people in a situation where BSD-code was relicensed to a more restricted license. That's really odd.

Relicensing: what's legal and what's right

Posted Sep 5, 2007 17:30 UTC (Wed) by dag- (guest, #30207) [Link]

I didn't say asking wasn't an option. But we are discussing a scenario where exactly the step of *asking* was left out. Asking applies to both parties.

It specifically and intentionally allowed it, it had a dual-license.

Not everybody wants to enforce his own ethical views on others. What I find offensive is that a lot of people seem to attack the BSD people in a situation where BSD-code was relicensed to a more restricted license. That's really odd.

I definitely think you should reread all articles and threads before continuing this discussion. Including the normal discussion on the mailinglist after the patch was send, Theo's abusive emails, the OpenBSD incident and again Theo's abusive emails.

A convincing argument is that Theo has been so loud because the previous OpenBSD incident backfired and he wanted to get even. The subject was badly chosen as it was a patch send to a public mailinglist and not an approved change in the VCS. Disproportional, untasteful and an incentive for wide reaction.

I like openssh and probably use other things that have been contributed by the OpenBSD community, but that doesn't give Theo the right to act the way he does. As you said, communication works both ways and there needs to be goodwill from both sides. Theo just adds fuel to a candle.

Relicensing: what's legal and what's right

Posted Sep 6, 2007 13:56 UTC (Thu) by amikins (guest, #451) [Link] (2 responses)

>I didn't say asking wasn't an option. But we are discussing a scenario where exactly the step of *asking* was left out. Asking applies to both parties.

What Dag has been trying to point out, and so far it doesn't look like you've acknowledged, is that the author of the dual-licensed code chose the particular wording of his dual-licensed code to give permission for the code to become GPL-only.

Asking wasn't needed, because the author had already said it was okay. This was again confirmed later by the author on LKML.

Relicensing: what's legal and what's right

Posted Sep 6, 2007 14:19 UTC (Thu) by nofutureuk (subscriber, #3116) [Link] (1 responses)

As I said, my concern isn't so much about what was legal in this case, but more about what would be morally right (and feasible in the long run). So yes, I have *not* acknowledged anything about legality, because I am not a lawyer and I will try to avoid joining a legality discussion for the same reason.

It should also be noted that when I say "people" or "parties", I do not mean the exact people or parties involved in this case, but I was talking in general terms. Or did I start accusing the author of that patch or the author of the driver? If so, I must apologize.

It seems to be really hard to discuss culture these days, with people always bunkering behind laws. strange.

Relicensing: what's legal and what's right

Posted Sep 6, 2007 14:34 UTC (Thu) by amikins (guest, #451) [Link]

I'm a little baffled at how there can be a question if something is morally right when someone explicitly granted permission to do it. This isn't just a legality point.

If the author of a work wants people to be able to do something with it, and makes it clear that's their intent, where is the fault in taking them up on the offer?

Relicensing: what's legal and what's right

Posted Sep 5, 2007 16:53 UTC (Wed) by dag- (guest, #30207) [Link] (2 responses)

... there are many reasons for choosing a license none will match the exact ethical expectations, which is why I often chose BSD or MIT license, because I want to able to re-use my own stuff at work, while still allowing it to be used by GPL people. GPL people are not that liberal, they are simply very often overzealous.

I find your logic and conclusion/opinion very concerning.

You say that it is logically/ethically the correct decision that you contribute changes to someone else's codebase. If I would expect that, I would put that requirement in the license (ie. choose GPL).

However, you then say that you choose the BSD license so that you can reuse the same stuff you wrote at work. Now, the stuff you write yourself is never the problem, even with GPL you are the copyright owner and you can do what you like.

So the problem is using someone else's 'stuff' at work, right ? So you prefer that other people use the BSD license so one has the liberty to use their code at one's company, modify it, distribute it without the requirement that any changes have to go back. Even when that is the most ethical behaviour, there is no requirement to do so and this liberty is why the BSD license is more liberal.

The liberty you see in the BSD license is exactly what you denounce when you *see* someone use that liberty. And the ethical behaviour you expect goes only so far as you can see, companies do it behind doors and you don't mind, in fact you celebrate the same liberty ! Why can't Open Source people not use that same liberty you use at work ?

The only reason I can see for this different behaviour against the Linux community and the proprietary corporations, is that you see the Linux community as real competition for your project, while the corporate interest (and non-contribution) does not directly compete within the larger Open Source development community.

And I am not saying you don't have the right to choose what license you choose for your own code, not at all. I find it concerning that you have conflicting expectations for other Open Source communities and corporations. What is good for the goose is apparently not good enough for the gander.

Relicensing: what's legal and what's right

Posted Sep 5, 2007 17:49 UTC (Wed) by nofutureuk (subscriber, #3116) [Link] (1 responses)

You say that it is logically/ethically the correct decision that you contribute changes to someone else's codebase. If I would expect that, I would put that requirement in the license (ie. choose GPL).

I said before that forcing other people into adopting ones ethical view-point in legal terms, is something that can be avoided. There is a difference between ethics and law.

However, you then say that you choose the BSD license so that you can reuse the same stuff you wrote at work. Now, the stuff you write yourself is never the problem, even with GPL you are the copyright owner and you can do what you like.

Right, my example is wrong. Sorry ;-)

So you prefer that other people use the BSD license so one has the liberty to use their code at one's company, modify it, distribute it without the requirement that any changes have to go back.

Ok, consider I publish code with GPL license and somebody sends me a patch to fix/enhance something. Will I be allowed to re-use that patch in a closed environment in my company? I mean, open-sourcing your own code is about solving a problem you have and hoping that others have the same problem and therefore they will hopefully help minimize your own work. It really is about being lazy in the first place (at least to me, that again is not something I would want to push on others).

I don't denounce people using the liberty of re-using code, but I denounce people saying that the BSD people should shut up when they feel ripped off. I also denounce people who replace licenses without agreement (although in this case, it was probably right, but I said "people").
Also, I see there is competition, yes, but that's just fine. Competition always helps improve the overall result.

At work, one is not allowed to relicense the source-code. That is not a liberty unless agreed with all parties.

In general terms, having conflicting expectations is perfectly normal. It really depends on the context. You cannot have absolute expectations in a world full of relativity.

My point is that other people are falling back into lame "legality" discussions, whereas this whole topic factually is much more about the very reasons of existence of open-source software and liberal licensing schemes:

Why does one open-source code (not hide it)?
Why does one allow others to re-use it?
... etc.

Also note that everybody's perception certainly has an influence on what we see happen and what we don't see happen. I mean, I am not reading LKML on any sort of regular basis... so I want to make sure that my concern is not at all about Linux people or all GPL people, but pure and only about those people that try to re-use these kind of moments (the patch above) to push their propaganda for the "right" license. That's something that does not help anyone.

dag- you definitely have some good points. thx for your input

Relicensing: what's legal and what's right

Posted Sep 13, 2007 10:11 UTC (Thu) by kzm (guest, #47358) [Link]

> Ok, consider I publish code with GPL license and somebody sends me a patch
> to fix/enhance something. Will I be allowed to re-use that patch in a
> closed environment in my company?

Actually, yes. Copyright (and the licensing of same) does not regulate use, only distribution and public performance, so GPL vs BSD is irrelevant.

On the other hand, if your code was GPL, it would be legal for you to include the patch in your distribution (as it is a derivative work, and thus also GPL-licensed), if your code is BSD, you'd need an explicit permission from the author.

A small patch may be too trivial to be covered by copyright.

> I denounce people saying that the BSD people should shut up when
> they feel ripped off.

The difference between a legal right and a moral right is that the legal right can be enforced, the moral right can only be excercised through agreement. Ever wonder why so few beggars yell at you about their moral rights to some of your money? Amazing that so many bright developers apparently fail to realize that.

-k