Virally licensed code in FreeBSD kernel

Ted Mittelstaedt tedm at
Sun Apr 15 22:28:07 UTC 2007

----- Original Message ----- 
From: "Chad Perrin" <perrin at>
To: "Michel Talon" <talon at>
Cc: "FreeBSD Questions" <freebsd-questions at>
Sent: Sunday, April 15, 2007 2:55 PM
Subject: Re: Virally licensed code in FreeBSD kernel

> Between these four sections -- 1.3, 1.6, 1.9, and 3.6 -- it is not 100%
> clear what the intention (in a legal context) of the licensing as it
> applies to a "Larger Work" must be.  Granted, it sure looks like no
> other parts of a "Larger Work" that are not part of the same file as
> code explicitly licensed CDDL would be covered by the CDDL, but a lawyer
> could probably make a pretty good case for the license extending beyond
> the explicitly licensed code in a case where a "Larger Work" is compiled
> as a single binary executable.

Chad, that is very unlikely.  If that kind of tack would have worked then
SCO would have tried this when they filed the infringement lawsuit against

This argument was also NOT tried when Unix Systems Labs sued University of
California, Berkely over the original FreeBSD source code.

In both those lawsuits, the lawyers didn't attempt to include the -entire-
distribution.  Instead they included the subsections.  In the USL lawsuit it
was the kernel.

The SCO lawsuit is still languishing but the USL lawsuit was settled after
the judge ruled that USL couldn't make a case, and
subsequent to this the lawyers set out a list of specific source files that

> In any case, even if the rest of the code in the compiled binary is not
> in fact covered by the CDDL under any circumstances other than explicit
> release under terms of the CDDL, one still has a source distribution
> obligation for part of such a compiled binary according to the law and
> the terms of the CDDL -- the part that is distributed under terms of the
> CDDL, at minimum.  This means that a compiled binary that includes CDDL
> code in its source files carries a source distribution legal obligation,
> period.  We're chipping away at the "freeness" of the software either
> way.

Here is the summary problem, and it's the problem with the GPL.  Copyright
law basically says the owner cannot release copyright interest by doing
nothing.  In other words if I compile GPL code into my code and distribute
the result, my code's copyright stays with me, unless I do something
explicit like
signing over copyright ownership to the FSF

With GPL code where the owner has given over copyright to the FSF,
the FSF can simply threaten to sue an infringer if they distribute a
to GPL code then try to use their copyright rights over someone else to
them further modifying their modification in ways they do not want to
have happen - because the FSF can withdraw
permission they have to use the FSF-owned copyrighted code under GPL.

But in the vast majority of cases of GPL code the developer retains
on the stuff that is distributed via GPL.  It is not at all clear that if
someone takes
that GPL code and does something in violation of the GPL, and the copyright
holder refuses to do anything about it, that the FSF has any legal standing
get involved in a lawsuit.  And if they don't, and nobody else sues, then
GPL violator will "get away" with violating the GPL.  And if that happens
enough times, the "threat value"of the GPL will become mostly useless.

Right now the only "threat value" that the GPL carries against infringement
for non-FSF code is that people know that even if the original copyright
didn't sign over copyright rights to the FSF, and doesen't have deep
if they infringe GPL code and the copyright holder
doesen't like it, the FSF will come rushing in with their money and lawyers
help the copyright holder to sue the infringer.

What people don't know about is what is happening with GPLed code that
the copyright stayed with the owner, was never given over to the FSF, and
the original author loses interest in it, and someone comes along and
infringes it.

There's dozens if not hundreds of GPL projects languishing around up on
Sourceforge that haven't had updates to them for years, have had few
downloads, and little general interest by the community and no interest by
their copyright holders.  If someone came along and stole sections of
the work and put it in a commercial product, do you think the FSF would
sue them, or even publicize it?  I very much doubt it.  The FSF does not
like to advertise failures in the GPL and I believe that there has been a
lot of infringement of GPL code in the past that the FSF has remained
quiet about - simply because they cannot interest the copyright holders in
getting involved in a lawsuit, or transferring copyright ownership to the

A software license is only as good as the willingness of the copyright
to back it up.  For FSF copyrighted code, there's a lot of willingness - but
the general public often mistakenly equates
in the same league as jow-blow-owned-copyright-code-under-GPL.


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