From: Daniel Hazelton <dhazelton@enter.net>
To: Dan Williams <dcbw@redhat.com>
Subject: Re: rt73usb: support for wireless in Kohjinsha subnotebook
Date: Tue, 23 Oct 2007 13:07:23 -0400
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Cc: Pavel Machek <pavel@ucw.cz>, Ivo van Doorn <ivdoorn@gmail.com>,
       Luis Correia <luis.f.correia@gmail.com>,
       kernel list <linux-kernel@vger.kernel.org>,
       linux-wireless@vger.kernel.org, rt2400-devel@lists.sourceforge.net,
       mwallis@serialmonkey.com
References: <20071020184100.GA11640@elf.ucw.cz> <20071022220000.GH28190@elf.ucw.cz> <1193148312.8648.17.camel@localhost.localdomain>
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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@issc.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 
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)

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 
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.

DRH

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