Message-Id: <200710231541.42943.dhazelton@enter.net>
Date:	Tue, 23 Oct 2007 15:41:42 -0400
From:	Daniel Hazelton <dhazelton@...er.net>
To:	Dan Williams <dcbw@...hat.com>
Cc:	Pavel Machek <pavel@....cz>, Ivo van Doorn <ivdoorn@...il.com>,
	Luis Correia <luis.f.correia@...il.com>,
	kernel list <linux-kernel@...r.kernel.org>,
	linux-wireless@...r.kernel.org, rt2400-devel@...ts.sourceforge.net,
	mwallis@...ialmonkey.com
Subject: Re: rt73usb: support for wireless in Kohjinsha subnotebook

On Tuesday 23 October 2007 14:54:54 Dan Williams wrote:
> On Tue, 2007-10-23 at 13:07 -0400, Daniel Hazelton wrote:
> > On Tuesday 23 October 2007 10:05:12 Dan Williams wrote:
> > > On Tue, 2007-10-23 at 00:00 +0200, Pavel Machek wrote:
> > > > Hi!
> > > >
> > > > > > > Yes, I'm quite sure. There's MODULE_LICENCE("GPL"), IIRC.
> > > > > >
> > > > > > That doesn't say much, some manufacturers add that line to their
> > > > > > driver just to prevent the module loader complaining about a
> > > > > > non-GPL driver...
> > > > > >
> > > > > > There should be a copyright notice or a license file accompanied
> > > > > > with the driver that clearly states the license of the driver.
> > > > >
> > > > > Lacking an explicitly stated license it can be argued that, since
> > > > > the MODULE_LICENSE() macro is meant to define the actual license on
> > > > > the code, this code is GPL. No, it isn't an explicit definition,
> > > > > but lacking any other signs of the license, the implicit
> > > > > declaration of it being GPL is (or should be) enough to deflect
> > > > > charges of copyright infringement.
> > > >
> > > > Yep, I believe this driver is GPLed. They published the source and
> > > > there's nothing to suggest otherwise, and there's explicit:
> > > >
> > > > #define DRIVER_AUTHOR                   "Jeff
> > > > Lee<YY_Lee@...c.com.tw>" #define DRIVER_DESC                         
> > > >    "IS89C35 802.11bg WLAN USB Driver" MODULE_LICENSE("GPL");
> > >
> > > If there isn't an explicit COPYING or LICENSE file or something
> > > distributed with the driver, and if there aren't copyright/license
> > > headers at the top of the files in question, I have a hard time
> > > agreeing that MODULE_LICENSE("GPL") _definitely_ means that the author
> > > has GPL-ed the driver intentionally.  Of course that's the way it's
> > > supposed to work, but to me this doesn't pass sufficient muster to be
> > > definitely called GPL without additional clarification.
> > >
> > > Dan
> >
> > Lacking any other indication MODULE_LICENSE is supposed to mark the
> > license that the code is being distributed under. If companies are
> > intentionally
>
> Step 1: Ask the author.

Agreed. This should have been done before this discussion even started.

> Step 2: if the author doesn't reply, then we can have this discussion
>
> MODULE_LICENSE is just a random string that could have been added by
> anybody, not necessarily the author.  Unless you can determine the
> intent of the author explicitly, a single MODULE_LICENSE is not
> sufficient to concretely determine the license of the code.  It's only
> in one file.  There is nothing to explicitly state the overall license
> of the whole work unless each file has a header referring to the license
> or unless there is a license document distributed with the code as a
> whole.
>
> In the absence of any other indication, MODULE_LICENSE doesn't not
> concretely determine the license of the code.  You can assume it does,
> but that's your gun to put to your own head.

The intent of MODULE_LICENSE is to mark the license on the code. This is 
clearly stated in several places in Documentation/ (if my memory serves).

> > mis-using this to get around the "internal interfaces" limitations (where
> > some interfaces are not available unless the module is GPL'd) and the
> > warning message printed in the logs when the module is not GPL'd then
> > they are (technically) in violation of the law. (interfaces that are GPL
> > only are considered so internal to the kernel that using them makes your
> > code GPL because of the inclusion of GPL'd code. And no - I am not going
> > to get into that discussion - it's pointless)
>
> Just because the module may be loading illegally says _nothing_ about
> the license of the code.

No, but it is a mis-use of MODULE_LICENSE, which is supposed to state the 
correct license on the code.

> > In the end, using MODULE_LICENSE for any purpose other than declaring the
> > chosen license for the code is deceptive. So it is easily arguable that
> > by
>
> "deceptive" is also not "this code code is definitely GPL".  Doesn't
> matter whether it's deceptive or not.  We do not know that the code is
> GPL.

Deception in order to create a situation whereby you can prosecute people for 
violation of the law is illegal. Therefore not distributing the code with any 
indication as to the license other than MODULE_LICENSE and attempting to 
prosecute afterwards is illegal. QED: even if the code is not GPL'd (and such 
could be learned by contacting the author), the fact that it ships without 
any indication of the license other than MODULE_LICENSE implies that the 
license is what is stated and prosecution on the grounds that it isn't 
becomes entrapment.

> > not including any license with the code other than the MODULE_LICENSE
> > statement and then trying to prosecute because MODULE_LICENSE doesn't
> > accurately state the license on the code is entrapment and illegal.
>
> Arguable doesn't mean that it's concrete enough to pass legal muster.  I
> am not a lawyer, but this just doesn't pass the bar.

I know several and have asked one that is a very good friend. He agreed with 
my interpretation of the presented facts - that since the only indication of 
what the license on the code might be is MODULE_LICENSE it can be safely 
assumed that the license is what that states. Any attempt to later prosecute 
because the license is not what is stated would constitute entrapment - which 
is illegal.

DRH

PS: note that all legal information contained here-in is only known to be 
valid in the US.

-- 
Dialup is like pissing through a pipette. Slow and excruciatingly painful.
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