"A change after 2.6.24 broke ndiswrapper by accidentally removing its access to GPL-only symbols," noted Pavel Roskin, offering a patch to address the issue. Linux creator Linus Torvalds was unimpressed, "I'm not seeing why ndiswrapper should be treated separately. If it loads non-GPL modules, it shouldn't be able to use GPLONLY symbols." The NDISwrapper project page explains, "many vendors do not release specifications of the hardware or provide a Linux driver for their wireless network cards. This project implements Windows kernel API and NDIS (Network Driver Interface Specification) API within Linux kernel. A Windows driver for wireless network card is then linked to this implementation so that the driver runs natively, as though it is in Windows, without binary emulation." Due to this, Linus explained:

"Ndiswrapper itself is *not* compatible with the GPL. Trying to claim that ndiswrapper somehow itself is GPL'd even though it then loads modules that aren't is stupid and pointless. Clearly it just re-exports those GPLONLY functions to code that is *not* GPL'd."

"There are no 'persons responsible for defending the kernel GPL', there are just a few hundreds or thousands copyright holders of the kernel, and each of them has the right to sue you if he thinks you distribute something that violates his copyright," Adrian Bunk responded in a recent discussion about the legality of linking to GPL'd code in embedded applications. He added, "jurisdiction and applicable copyright law depends on things like where the copyright holder lives and where you distribute it." When it was asked how the constraints of a given piece of hardware might affect the interpretation of the GPL, Theodore T'so explained:

"At the end of the day it all boils down to what is a derived work. If an object file which is designed to link into a kernel is a derived work, then the GPL claims that it will infect across to that derived work. Whether or not it this is a case is a matter of much debate, and as far as I know, no court has ever ruled on point regarding the question of object files, dynamical linking, and whether or not that would be a derived work or not. It seems likely that the answer may vary from one legal jurisdiction to another. Hence, the only answer that we can give which is useful is, 'Take this off of LKML, and go ask a lawyer.'"

The OpenBSD project maintains a six month release cycle, with the upcoming 4.2 release officially scheduled for November 1'st. Each release includes a song relevant to current issues faced by the project. For this release the song is titled "100001 1010101", about which OpenBSD creator Theo de Raadt notes, "it is designed to sound like a mid-era Rush song, ie. something from Grace Under Pressure or such. And there's a few easter eggs hidden in the song as well. It also explains the inside sleeve image..." The referenced image shows a marathon between some of the different operating system mascots, running a a race through often hostile looking surroundings, fraught with distractions. Toward the bottom is an obvious reference to the recent issue of relicensing BSD code under the GPL, in which Puffy, the OpenBSD mascot, shows a map to Tux, the Linux mascot, and the latter takes off with it. The OpenBSD lyrics page explains that BSD code is shared with all, even non-open-sourced projects who respect the license and frequently return code, "we fully admit that some BSD licensed software has been taken and used by many commercial entities, but contributions come back more often than people seem to know, and when they do, they're always still properly attributed to the original authors, and given back in the same spirit that they were given in the first place." Theo noted, "that's the best we can expect from companies," going on to add, "but we can expect more from projects who talk about sharing -- such as the various Linux projects." He explained:

"Now rather than seeing us as friends who can cooperatively improve all codebases, we are seen as foes who oppose the GPL. The participants of "the race" are being manipulated by the FSF and their legal arm, the SFLC, for the FSF's aims, rather than the goal of getting good source into Linux (and all other code bases). We don't want this to come off as some conspiracy theory, but we simply urge those developers caution -- they should ensure that the path they are being shown by those who have positioned themselves as leaders is still true. Run for yourself, not for their agenda.

"The Race is there to be run, for ourselves, not for others. We do what we do to run our own race, and finish it the best we can. We don't rush off at every distraction, or worry how this will affect our image. We are here to have fun doing right."

"Based on the new guidelines posted by the SFLC on 'Maintaining Permissive-Licensed Files in a GPL-Licensed Project: Guidelines for Developers', specifically section 5, we are introducing a new tag for use with patches which deal with files licensed under permissive licenses (BSD, ISC) on Linux wireless in our larger GPL project, the Linux kernel," explained Luis Rodriguez in an email titled, "new 'Changes-licensed-under' tag introduced for Linux-wireless". The web pages linked in the email appear to be an official response by the SFLC regarding the recent BSD vs. GPL licensing controversy surrounding the Atheros wireless device driver. Luis continued:

"Although some developers have a practice of implying their patches for a permissive licensed file abides by the respective permissive license of the file being patched, and although some changes are obviously not copyrightable, we would like to 'err on the side of caution', take the advice from SFLC, and introduce Changes-licensed-under in order to help the BSD family reap benefits of our contributions to permissive licensed files."

There were only a few brief replies to Luis' email. Stephen Hemminger suggested a simpler solution, "no, please don't [go] down this legal rat hole. It would cause bullshit like people submitting dual licensed patches to the scheduler or GPL only patches to the ath5k or ACPI code. Instead, add a section to Documentation/SubmittingPatches that clearly states that all changes to a file are licensed under the same license as the original file." Krzysztof Halasa pointed out that this was already the case, quoting a line from the Developer's Certificate of Origin contained in the SubmittingPatches file which says, "the contribution was created in whole or in part by me and I have the right to submit it under the open source license indicated in the file".

"We, the MadWifi team, announce our decision to move away from the binary-only HAL and change the focus of our future development towards ath5k, a completely free (as in freedom) driver which will eventually become an integral part of the Linux kernel," Michael Renzmann posted to the MadWifi development mailing list. The decision comes during continued debate surrounding what is and what is not allowed by the BSD license, and with no official statement yet from the SFLC. Much of the debate was due to an attempt to release BSD licensed files under the GPL, visible for example in the ath5k_hw.c source file which is still labeled as available "under the terms of the GNU General Public License" in the latest version of the file checked into the source repository linked from the MadWifi project page. It appears that actual development of the ath5k driver has been moved to Linville's git tree, where the license is now purely BSD, though debate remains as to what's required to be able to add additional copyrights to source code as have been added to the reverse engineered HAL code originally written by Reyk Floeter. In an earlier confrontation with Atheros, the work done by Reyk was determined to be free of copyright infringement:

"A driver for Atheros wireless cards is available in OpenBSD that talks directly to the hardware, based on reverse engineering efforts done by Reyk Floeter. Relevant parts of the driver have been ported to Linux by Nick Kossifidis to start OpenHAL, a free (as in freedom) replacement of the proprietary HAL. Claims that the OpenBSD driver (and thus also OpenHAL) contains stolen code slowed down the OpenHAL efforts but finally could be voided. The Software Freedom Law Center (SFLC), with the help of Atheros, performed a thorough code review and concluded "that OpenHAL does not infringe copyrights held by Atheros". In other words, the way is clear now for the inclusion of an OpenHAL-based driver into the Linux kernel."

"What is going on whenever someone changes code is that they make a 'derivative work'," began Theodore Ts'o. "Whether or not you can even make a derivative work, and under what terms the derivative work can be licensed, is strictly up to the license of the original. For example, the BSD license says: 'redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met....' Note the 'with or without modification'. This is what allows people to change BSD licensed code and redistribute said changes." Regarding code that is GPL'd, he added, "it is not a relicencing, per se, since the original version of the file is still available under the original copyright; it is only the derived work which is under the more restrictive copyright."

Disagreement continued as to whether or not the BSD license allows the addition of new copyrights on unmodified or minimally modified code. Another disagreement was over the continued existence of improperly licensed files in developer source code repository histories from when BSD licensed files had been changed to the GPL, a problem since fixed. Jeff Garzik explained:

"In a purely open development environment, even personal developer trees are made public. That's the way we _want_ development to occur. Out in public, with a full audit trail. Your implied ideal scenario is tantamount to guaranteeing that mistakes are never committed to a public repository anywhere. Mistakes will happen. Even legal mistakes. In public.

"What you are seeing is an example of mistakes that were caught in review, and corrected. That's how any scalable review process works... the developer reviews his own work. the team reviews the developer's work. the maintainer reviews the team's work. the next maintainer reviews. and so on, to the top."

As the Atheros driver issue continues to simmer on the OpenBSD -misc mailing list and the Linux Kernel mailing list, with debate continuing over when the license of source code can be altered or added to, Eben Moglen made a statement for the Software Freedom Law Center. He began by defending their own actions, "it might be useful to recall the first stage of this process, when OpenBSD developers were accused of misappropriating Atheros code, and SFLC investigated and proved that no such misappropriation had occurred? Wild accusations about our motives are even more silly than they are false." He went on to acknowledge, "we understand that attribution issues are critically important to free software developers; we are accustomed to the strong feelings that are involved in such situations. In the fifteen years I have spent giving free legal help to developers throughout the community, attribution disputes have been, always, the most emotionally charged." He added that the SFLC would be making no further statements until their work on this matter was complete, noting:

"Also, and again for the last time, let me state that SFLC's instructions from its clients are to establish all the facts concerning the development of the current relevant code (which means the painstaking reconstruction of several independent and overlapping lines of development, including forensic reconstruction through line-by-line code reviews where version control system information is not available), as well as to resolve all outstanding legal issues, and to make policy recommendations, if possible, that would result in all projects, under both GPL and ISC, having full access to all code on their preferred terms, on an *ongoing* basis, with full respect for everyone's legal rights. We continue to believe those policy goals are achievable in this situation. The required work has been made more arduous because some people have chosen not to cooperate in good faith. But we will complete the work as soon as we can, and we will, as Mr Garvik says, follow the community's practice of complete publication, so everyone can see all the evidence."

"Reyk and I have decided to show something from the private handling of this Atheros copyright violation issue," OpenBSD creator Theo de Raadt began in a posting to the OpenBSD -misc mailing list referring to the recent relicensing of OpenBSD's BSD licensed Atheros driver under the GPL. He noted, "it has been like pulling teeth since (most) Linux wireless guys and the SFLC do not wish to admit fault. I think that the Linux wireless guys should really think hard about this problem, how they look, and the legal risks they place upon the future of their source code bodies." He stressed that the theory that BSD code can simply be relicensed to the GPL without making significant changes to the code is false, adding, "in their zeal to get the code under their own license, some of these Linux wireless developers have broken copyright law repeatedly. But to even get to the point where they broke copyright law, they had to bypass a whole series of ethical considerations too." Theo went on to explain:

"I believe these people have received bogus advice from Eben Moglen regarding how copyright law actually works in a global setting. Perhaps the internationally based developers should rethink their approach of taking advice from a US-based lawyer who apparently knows nothing about the Berne Convention. Furthermore, those developers are getting advice freely from ex-FSF people who have formed an agency with an agenda. Some have suggested that the SFLC was formed to avoid smearing the FSF with dirt whenever the SFLC does something risky. Don't get trampled; there could be penalties besides looking unethical and guilty. Be really cautious, especially with things like this coming to mess with our communities."

Author of OpenBSD's hardware driver layer for wireless Atheros devices, Reyk Floeter, sent a query to the Linux Kernel mailing list regarding the recent licensing debate surrounding the Linux "ath5k" driver, "I'm still trying to get an idea about the facts and the latest state of the incidence that violated the copyright of my code, because I just returned from vacation." He continued:

"I'm very disappointed about this and I hope that it was a mistake, because it is very unfair and malicious against me and the OpenBSD community. I invested a lot of time to write the code and to make it work with as many chipsets as possible. And during the last years, the OpenBSD community helped to test and to improve the driver. I always liked the idea to port it to other operating systems, but now somebody harmed these efforts by violating the license."

Reyk explained that he has cooperated with developers porting his free Atheros driver from OpenBSD to other operating systems, "because it is a clear sign against hardware companies attacking the free software 'community' by releasing binary-only driver objects instead of free code or hardware documentation." He explained that he had worked with the developers who ported his driver to Linux as "OpenHAL", "we exchanged ideas, bug fixes, and small code snippets. They sent me some bug reports and I also looked at their changes and reported some functional problems. This was possible because they kept the license in place." Finally he expressed concern that this would no longer be possible if the license was changed, "somebody wants to cancel any options to cooperate by locking me out with a prepended GPL and an invalid copyright on top of it."

Discussion continues on the Linux Kernel mailing list about the legality and morality of re-licensing BSD/GPL dual-licensed code under only the GPL. Alan Cox replied to Theo de Raadt's comments suggesting he was encouraging people to break the law, "re-read my email and then apologize. I do question the .h files where they are BSD licence and no changes were made to the work. I also point out that the dual licence on that code appears to give permission to distribute under one of those licences by choice." In response to Theo's request that code be shared both ways rather than converted to a sole GPL, "that's about the first thing I would agree on - its somewhat rude and not something I personally would usually choose todo." He then cautioned that this was a limitation of the BSD license:

"If OpenBSD wants a world where code must be returned, but you can mix it with free code in a product in some fashion and do binary only releases then OpenBSD needs to fix its licencing. Not to GPL which is clearly not the BSD intention but to something which does what BSD wants rather than an academic research licence developed thirty odd years ago for the purpose of showing that US research funds were properly spent. Perhaps its time for BSD2 licencing?"

OpenBSD project creator Theo de Raadt detailed his concerns regarding BSD-licensed code and Dual-BSD/GPL-licensed code being re-licensed under only the GPL as previously discussed here, "honestly, I was greatly troubled by the situation, because even people like Alan Cox were giving other Linux developers advice to ... break the law. And furthermore, there are even greater potential risks for how the various communities interact." He went on to add:

"It may seem that the licenses let one _distribute_ it under either license, but this interpretation of the license is false -- it is still illegal to break up, cut up, or modify someone else's legal document, and, it cannot be replaced by another license because it may not be removed. Hence, a dual licensed file always remains dual licensed, every time it is distributed."

Theo then talked about cases where a significant amount of code is added or changed, "if you add 'large pieces of originality' to the code which are valid for copyright protection on their own, you may choose to put a different and separate (must be non-conflicting...) license at the top of the file above the existing license." He then suggested, "if you wish for everyone to remain friends, you should give code back. That means (at some ethical or friendliness level) you probably do not want to put a GPL at the top of a BSD or ISC file, because you would be telling the people who wrote the BSD or ISC file, 'thanks for what you wrote, but this is a one-way street, you give us code, and we take it, we give you you nothing back.'"

In a recent series of patches posted to the Linux Kernel mailing list, it was proposed that some imported Atheros wireless device drivers be re-licensed, some from a dual-BSD/GPL license, others from a modified BSD license, all to a pure GPLv2 license. Christoph Hellwig asked, "is this really a good idea? Most of the reverse-engineering was done by the OpenBSD folks, and it would certainly be helpful to work together with them on new hardware revisions, etc.." Luis Rodriguez suggested that there was no choice, "technically the best we can do is to leave the license as dual licensed, but keep in that technically that means nothing and is just for show, the GPL is what would apply as its derivative work and is the most restrictive license."

The patch series was also discussed on OpenBSD's -misc mailing list where it was asked, "is Reyk [Floeter] and others working on this drivers code dual licensed (from the diff it doesn't seem like it is, since I see a BSD 3 Clause)? Also say I submit a patch for this driver, does that mean this will have to be dual licensed also or can I choose if it is BSD 3 Clause or GPLv2?" Theo de Raadt replied pointing out that there are two parts to the driver, one part written by Reyk Floeter, and another part written by Sam Leffler, "Reyk's code is *NOT* dual-licensed under the GPL. He has explicitly stated that his code is not dual-licenced. The file have no GPL on them. He's the author, he said so. None else can add a GPL to it." He went on to note that the files written by Sam Leffler are dual licensed with the clause, "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," stressing that 'alternatively' means 'or', "that means that if anyone makes changes to that file and distributes it, after their changes are in the file then EITHER license will apply."