Date: Sun, 16 Sep 2007 09:17:41 -0400
Message-Id: <1993-Sun16Sep2007091741-0400-eben@softwarefreedom.org>
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To: jcroberts@designtools.org
Cc: jeff@garzik.org, mrmacman_g4@mac.com, jason@dixongroup.net,
       misc@openbsd.org, lessig_from_web@pobox.com, bkuhn@softwarefreedom.org,
       norwood@softwarefreedom.org, fontana@softwarefreedom.org,
       karen@softwarefreedom.org, linux-kernel@vger.kernel.org
Subject: Statement by SFLC (was Re: Wasting our Freedom)
In-Reply-To: J.C. Roberts's message of Sun, 16 Sep 2007 02:17:53 -0700
      <200709160217.55933.jcroberts@designtools.org>
References: <5C8C3794-C62A-4935-8267-81080CCF6867@dixongroup.net>
	<200709160052.45493.jcroberts@designtools.org>
	<46ECE554.5030308@garzik.org>
	<200709160217.55933.jcroberts@designtools.org>
From: Eben Moglen <moglen@softwarefreedom.org>
Reply-To: Eben Moglen <moglen@softwarefreedom.org>
Sender: linux-kernel-owner@vger.kernel.org
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On Sunday, 16 September 2007, J.C. Roberts wrote:

  Let's say 
  someone took the linux kernel source from the official repository, 
  removed the GPL license and dedicated the work to public domain or put 
  it under any other license, and for kicks back-dated the files so they 
  are older than the originals. 

  Now take it one step further. For the sake of example, let's assume all 
  of this atheros driver nonsense went to a German court and the 
  GNU/FSF/SFLC/Linux or whoever you want to call yourselves lost a 
  criminal copyright infringement suit. You have now been legally proven 
  to be guilty code theft.
  
  After such a ruling let's assume some jerk was to do the all the 
  horrific stuff mentioned in the first paragraph above to the linux 
  source tree, along with a little regex magic to call it something other 
  than "linux" and seeded the Internet with countless copies. 

None of this has happened.  What has happened is that people who do
not have full possession of the facts and have no legal expertise--
people whom from the very beginning we have been trying to help--have
made irresponsible charges and threatened lawsuits, thus slowing down
our efforts to help them.  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.

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.

But making threats of litigation and throwing around words like
"theft" and "malpractice" was a Really Bad Idea, because once some
people started using that language--thus making adversaries rather
than collaborators of themselves--I had no choice but to ask my
clients and my colleagues to stop communicating with them.

Let me therefore point out one last time that if the threats of
litigation and bluster about crime and malpractice--none of which has
the slightest basis in fact or law--were withdrawn, we would be able
to resume detailed communication with everyone who has a stake in the
outcome.

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.

We will make no more public statements until the work is complete, and
we will be neither hurried nor intimidated by people who shout at us
instead of helping.


-- 
 Eben Moglen                            v: 212-461-1901 
 Professor of Law, Columbia Law School  f: 212-580-0898       moglen@
 Founding Director, Software Freedom Law Center            columbia.edu
 1995 Broadway (68th Street), fl #17, NYC 10023        softwarefreedom.org
 
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