Message-ID: <87ip9aoqae.fsf@ebb.org>
Date:	Mon, 12 Nov 2012 09:21:29 -0500
From:	"Bradley M. Kuhn" <bkuhn@...onservancy.org>
To:	<lrosen@...enlaw.com>, "Richard Fontana" <rfontana@...hat.com>,
	<kcopenhaver@...ate.com>, <agrover@...hat.com>
Cc:	<linux-kernel@...r.kernel.org>, <linux-scsi@...r.kernel.org>,
	<target-devel@...r.kernel.org>,
	"Marc Fleischmann" <mwf@...ingtidesystems.com>,
	"Nicholas Bellinger" <nab@...ingtidesystems.com>,
	<alan@...rguk.ukuu.org.uk>
Subject: Re: scsi target, likely GPL violation

Lawrence Rosen wrote at 17:13 (EST) on Sunday:
> First, I hope that we can tone down the arguments about whether the
> use of Linux APIs and headers automatically turns a program into a
> derivative work of Linux. I think that argument has been largely
> debunked in the U.S. in the recent decision in Oracle v. Google, and
> in Europe in SAS v. World Programming. Does anyone here question
> whether the original work that RTS contributed to Linux (and that *is*
> under the GPL) is an original work of authorship of RTS despite the
> fact that it links to other GPL code using headers and APIs?

My point remains that most of us simply don't have enough facts to know
at this point what case law applies to the situation.  Andy is seeking
facts to determine if a violation occurred, and I hope he gets them.

As I said in my previous email at 10:15 (EST) on Sunday:
>> lawyers disagree, and will often just take the position their client
>> wants them to take ...

I realize fully, Larry, that you're taking the position of your client,
whom you've identified as Rising Tide Systems.  Meanwhile, obviously, I
know many lawyers who disagree with your widely known interpretation of
the implications of the two cases you mention.

I'd suspect that most lawyers looking at this situation would probably
agree with me that the facts aren't fully known enough to make an
assessment about the derivative nature of any code involved (other that
the code that Rising Tide Systems pushed upstream already).  While the
facts regarding other code are presumably fully known to you, Larry,
because you have extra information under attorney-client privilege from
your client Rising Tide Systems, no one else can make an independent
evaluation of the facts yet.

I therefore suggest that Andy be permitted to continue seeking facts on
this question without being squelched, and we see what the facts bear
out.  If some copyright holders believe a violation has occurred,
provided the facts can be ascertained (which might prove difficult,
given the political climate this thread has created), I'm sure those
copyright holders will take up the matter at that point.

> Second, we are grateful for the efforts that Bradley Kuhn and others
> put in to enforce the GPL.

Thank you.

> So Brad[ley], we may solicit your assistance if we find any third
> party who is distributing an unauthorized non-GPL derivative work of
> the scsi target now in Linux.

Conservancy is a 501(c)(3) charity in the USA and is thus not able to
engage in copyright enforcement action on behalf of for-profit companies
like Rising Tide Systems.  However, individual copyright holders who
wish to put their copyrights forward as part of the coalition described
in Conservancy's May announcement at
http://sfconservancy.org/news/2012/may/29/compliance/ are welcome to do
so, provided those copyright holders agree in writing that their
copyrights will only be enforced to advance the public's access to Free
Software. (Details of that can be discussed in private email; feel free
to contact me if you're an individual copyright holder in Linux and
interested in discussing it.)

Larry, Conservancy *could* accept a charitable donation of
copyright assignment to Conservancy if Rising Tide Systems wishes to
do that.  Feel free to contact my privately if your client is
interested in that.

> RTS, of course, retains the exclusive right to do so, but no third
> party can do so without a license from RTS.

I'm sure you agree that Rising Tide Systems has already granted a
license under GPLv2 for their contributions to Linux, so parties
redistributing the derivatives of their code that are part of upstream
Linux already have a license under GPLv2 for that specific code.

> P.S. In accordance with my obligations as an attorney when
> communicating with a represented person, I am copying attorneys for
> Red Hat and Linux Foundation on this email.

This inclusion seems a bit more than necessary to me, but I'm always
happy to have Karen Copenhaver's and Richard Fontana's input on any
situation where they're willing to opine. :)
-- 
Bradley M. Kuhn, Executive Director, Software Freedom Conservancy
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