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From: ava...@coombs.anu.edu.au (Darren Reed)
Subject: Linux kernel in breach of GPL ?
Date: 1998/11/03
Message-ID: <19981103030130Z154686-5652+460@vger.rutgers.edu>#1/1
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I'm sure all of you are aware of the "Halloween Document", URLS:

http://www.tuxedo.org/~esr/halloween.html
http://www.news.com/News/Item/0,4,28215,00.html?st.ne.ni.lh
   
Given the attention of Microsoft, I think it would be prudent if
the Linux kernel was reviewed for compliance with the GPL.  Having
read some of the .c files in kernels as recent as 2.1.122, I am
under the impression that not all of the source code in the
distribution is in fact GPL'd and that which isn't would be in
direct conflict of the GPL itself.  If I was a legal eagle, I might
have more idea about whether or not that's grounds for a case, and
if so, who would be in a position to take such action.

To give you an example, the first .c file I looked at was kernel/dma.c
which has the following:

/* $Id: dma.c,v 1.7 1994/12/28 03:35:33 root Exp root $
 * linux/kernel/dma.c: A DMA channel allocator. Inspired by linux/kernel/irq.c.
 *
 * Written by Hennus Bergman, 1992.
 *
 * 1994/12/26: Changes by Alex Nash to fix a minor bug in /proc/dma.
 *   In the previous version the reported device could end up being wrong,
 *   if a device requested a DMA channel that was already in use.
 *   [It also happened to remove the sizeof(char *) == sizeof(int)
 *   assumption introduced because of those /proc/dma patches. -- Hennus]
 */

To me this implies that "Hennus Bergman" wrote that file and hence owns
the copyright to it and that the file is not in fact placed under GPL.

A quick count reveals 4000+ files in the linux kernel source tree, with
around 1000 actually having the word "GNU" in them.  Some 300 or so
have the word "GPL" in them.

Whilst this might be just a "nit", if I were part of Linux and with Linux
coming under the spotlight more and more, I would think it prudent for all
involved if any anonmalies were quickly resolved.  I don't think comments
such as the following are particularly "bright":

 * This code is heavily based on the code on the old ip_fw.c code; see below for
 * copyrights and attributions of the old code.  This code is basically GPL.

Reading later down in the file, it clearly contains a different license
to the GPL which is in fact against the license - unless permission has
been granted by the FSF for such to be allowed (in which case it would
probably be prudent to mention that somewhere).

To me, this indicates that all current, distributed, versions of Linux
are in fact in contradiction to the GPL license.

I don't mean to start a flame war, but if I was Microsoft and I was looking
for a way to take Linux out of the picture, this might (somehow) provide
them with the necessary first step.  I don't want to see that any more than
anyone else here.  I think a new release of 2.0 and 2.1 needs to be made
with at least the required corrections as suggested by the file "COPYING"
in the root Linux kernel source code directory.

Again, I'm not trying to pick a fight, _we_ all know what it meant to mean,
but we're not lawyers and if they can get OJ freed, then perhaps they could
argue Linux (as it is now) contradicts its own license.  As for what that
means, who knows ?

Darren

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From: a...@lxorguk.ukuu.org.uk (Alan Cox)
Subject: Re: Linux kernel in breach of GPL ?
Date: 1998/11/03
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> under the impression that not all of the source code in the
> distribution is in fact GPL'd and that which isn't would be in
> direct conflict of the GPL itself.  If I was a legal eagle, I might

It isnt. Read the GPL carefully with a basic IP law book to hand.

> To me this implies that "Hennus Bergman" wrote that file and hence owns
> the copyright to it and that the file is not in fact placed under GPL.

It would be good practice to label it so.

>  * copyrights and attributions of the old code.  This code is basically GPL.
> 
> Reading later down in the file, it clearly contains a different license
> to the GPL which is in fact against the license - unless permission has
> been granted by the FSF for such to be allowed (in which case it would
> probably be prudent to mention that somewhere).

The ip_fw code isnt in violating of the GPL because the component doesnt
contain any restrictions that violate the GPL. So when its part of the
kernel said component is under the GPL. It was left with the original
note long ago so that we could share firewall code back to the FreeBSD
people. Similarly the the cisco hdlc code in 2.1.12x is part of a GPL
total, but as a seperate work its under a much looser license.

Alan


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From: ava...@coombs.anu.edu.au (Darren Reed)
Subject: Re: Linux kernel in breach of GPL ?
Date: 1998/11/03
Message-ID: <19981103060609Z154781-5652+660@vger.rutgers.edu>#1/1
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In some mail from Alan Cox, sie said:
[...]
> > To me this implies that "Hennus Bergman" wrote that file and hence owns
> > the copyright to it and that the file is not in fact placed under GPL.
> 
> It would be good practice to label it so.

Indeed.  I'd encourage it too :-)

> >  * copyrights and attributions of the old code.  This code is basically GPL.
> > 
> > Reading later down in the file, it clearly contains a different license
> > to the GPL which is in fact against the license - unless permission has
> > been granted by the FSF for such to be allowed (in which case it would
> > probably be prudent to mention that somewhere).
> 
> The ip_fw code isnt in violating of the GPL because the component doesnt
> contain any restrictions that violate the GPL. So when its part of the
> kernel said component is under the GPL. It was left with the original
> note long ago so that we could share firewall code back to the FreeBSD
> people. Similarly the the cisco hdlc code in 2.1.12x is part of a GPL
> total, but as a seperate work its under a much looser license.

But how does that sit with the following paragraph:

  4. You may not copy, modify, sublicense, or distribute the Program
except as expressly provided under this License.  Any attempt
otherwise to copy, modify, sublicense or distribute the Program is
void, and will automatically terminate your rights under this License.
However, parties who have received copies, or rights, from you under
this License will not have their licenses terminated so long as such
parties remain in full compliance.

With consideration to the word "sublicense" ?  Whilst it isn't more
restrictive than the GPL, it isn't the GPL, which (to me) appears
to be a problem ?

Darren

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From: a...@lxorguk.ukuu.org.uk (Alan Cox)
Subject: Re: Linux kernel in breach of GPL ?
Date: 1998/11/03
Message-ID: <m0zahiQ-0007U5C@the-village.bc.nu>#1/1
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> But how does that sit with the following paragraph:
> 
>   4. You may not copy, modify, sublicense, or distribute the Program
> except as expressly provided under this License.  Any attempt
> otherwise to copy, modify, sublicense or distribute the Program is
> void, and will automatically terminate your rights under this License.
> However, parties who have received copies, or rights, from you under
> this License will not have their licenses terminated so long as such
> parties remain in full compliance.
> 
> With consideration to the word "sublicense" ?  Whilst it isn't more
> restrictive than the GPL, it isn't the GPL, which (to me) appears
> to be a problem ?

Because the GPL license also says:

These requirements apply to the modified work as a whole.  If
identifiable sections of that work are not derived from the Program,
and can be reasonably considered independent and separate works in
themselves, then this License, and its terms, do not apply to those
sections when you distribute them as separate works.

Alan


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From: m...@roan.co.uk (Mike Jagdis)
Subject: Re: Linux kernel in breach of GPL ?
Date: 1998/11/03
Message-ID: <Pine.LNX.3.91.981103132012.25443B-100000@toaster.roan.co.uk>#1/1
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On Tue, 3 Nov 1998, Darren Reed wrote:

> If I was a legal eagle, I might
> have more idea about whether or not that's grounds for a case, and
> if so, who would be in a position to take such action.

It is the copyright owner that would be wronged and thus the
copyright owner who would have to bring a civil action. In a
few extreme cases - where the infringement happened "in the
course of business" the wrong may become criminal but the police
have better things to do so again it would be up to the copyright
owner to initiate action.

> To me this implies that "Hennus Bergman" wrote that file and hence owns
> the copyright to it and that the file is not in fact placed under GPL.

You are confusing ownership of copyright and license to a copyright
work. The GPL is a *license* which allows non-copyright owners to
use the work in stated ways which may otherwise infringe the rights
of the copyright owner. Since the entire Linux kernel is covered
by the GPL submission of a file for inclusion in the kernel implies
that the author wishes the file to be placed under the GPL - if the
file is distributed as part of the Linux kernel. There are many,
many copyright holders involved in the Linux kernel. There is one
license - the GPL - covering the whole lot. Individual authors may
also have made their work available under other licenses - their
option.

>  * This code is heavily based on the code on the old ip_fw.c code; see below for
>  * copyrights and attributions of the old code.  This code is basically GPL.

There is nothing wrong with this - assuming the "old ip_fw.c code"
allowed this sort of use.

> Reading later down in the file, it clearly contains a different license
> to the GPL which is in fact against the license - unless permission has
> been granted by the FSF for such to be allowed (in which case it would
> probably be prudent to mention that somewhere).

It is nothing to do with the FSF. The copyright owner can issue
as many licenses with whatever terms they like (as long as they don't
fall foul of unfair contract laws). The FSF may have written the
GPL but that doesn't mean they automatically become the copyright
owner of anything the GPL is issued against. Assigning copyright
to someone other than the original author requires written statements
and signatures at the very least.

				Mike

-- 
.----------------------------------------------------------------------.
|  Mike Jagdis                  |  Internet:  mailto:m...@roan.co.uk   |
|  Roan Technology Ltd.         |                                      |
|  54A Peach Street, Wokingham  |  Telephone:  +44 118 989 0403        |
|  RG40 1XG, ENGLAND            |  Fax:        +44 118 989 1195        |
`----------------------------------------------------------------------'


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From: m...@roan.co.uk (Mike Jagdis)
Subject: Re: Linux kernel in breach of GPL ?
Date: 1998/11/03
Message-ID: <Pine.LNX.3.91.981103135111.25443C-100000@toaster.roan.co.uk>#1/1
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On Wed, 4 Nov 1998, Darren Reed wrote:

> With consideration to the word "sublicense" ?  Whilst it isn't more
> restrictive than the GPL, it isn't the GPL, which (to me) appears
> to be a problem ?

There does not seem to be a problem. The author has simply
provided two licenses. One, the GPL, appears to apply to the
file when it is distributed as part of the Linux kernel. The
other appears to apply to the file on its own. Of course,
you can argue about whether *you* can do what you want with
the file in court - but you can't stop the copyright owner doing what
they want with it (which includes issuing licenses to others)
unless you can show that they do not actually own the copyright.

				Mike

-- 
.----------------------------------------------------------------------.
|  Mike Jagdis                  |  Internet:  mailto:m...@roan.co.uk   |
|  Roan Technology Ltd.         |                                      |
|  54A Peach Street, Wokingham  |  Telephone:  +44 118 989 0403        |
|  RG40 1XG, ENGLAND            |  Fax:        +44 118 989 1195        |
`----------------------------------------------------------------------'


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