Message-Id: <1193174828.7110.15.camel@localhost.localdomain>
Date:	Tue, 23 Oct 2007 17:27:07 -0400
From:	Dan Williams <dcbw@...hat.com>
To:	Daniel Hazelton <dhazelton@...er.net>
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 Tue, 2007-10-23 at 15:41 -0400, Daniel Hazelton wrote:
> 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.

I asked Tom Callaway, who heads up all the legal/licensing issues for
Fedora.  He said essentially "it won't be in Fedora" on just the basis
of MODULE_LICENSE.  I can run it past Red Hat lawyers too.  It's just
not clear with only MODULE_LICENSE, and not clear pretty much means
Don't Touch until it becomes clear.

Dan

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

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