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Re: [AMENDMENT]: Release Etch now, with source-less but legal and freely licensed firmware

On Wed, Oct 04, 2006 at 06:12:38PM +1000, Anthony Towns wrote:
> On Tue, Oct 03, 2006 at 07:20:35PM +0200, Sven Luther wrote:
> > Anthony, this is bullshit. 
> Sven, if the GPL prohibits us from distributing the code, we (which is
> to say ftpmaster) won't distribute it. There's no way of phrasing a GR
> to change that.

Well, i agree with you to a point, but as everyone intent to distribute those
sourceless GPLed firmwares even if they are non-distributable, i cannot accept
the above claim.

> I don't believe the GPL does prohibit us from distributing that firmware.

Please consult with a lawyer about this, or give some argumentation to confirm
this believe. The GPL is very very firm about this : 

  GPL clause 3) asks for distributing the sources together with the binaries
  (or some alternative distribution means) :

  GPL clause 7) prohibit you from distributing code failing those which
  contradidcts the GPL, including clause 3. Let me quote it :

      7. If, as a consequence of a court judgment or allegation of patent
      infringement or for any other reason (not limited to patent issues),
      conditions are imposed on you (whether by court order, agreement or
      otherwise) that contradict the conditions of this License, they do not
      excuse you from the conditions of this License.  If you cannot
      distribute so as to satisfy simultaneously your obligations under this
      License and any other pertinent obligations, then as a consequence you
      may not distribute the Program at all. ...

The GPL is thus very clear, and there are no doubt whatsoever about what : 

  "then as a consequence you may not distribute the Program at all"

means. You claiming the contrary will not change that.

> I'm not interested in going into the legal justifications for that belief

I can see why, because it is clear you are wrong.

> just for the sake of argument, and I'm only saying what I am because I
> believe that without making it clear that we are trying to comply with
> the license in good faith, we would be asking for both a lawsuit and
> punitive damages.

Ah. So, you think it is best to play the uninformed. I am not sure. Remember
that the plan calls for us (well, the debian-kernel team, me among them), to
approach those vendors having badly licensed firmware, and ask them for a
clarification, and us being silent now will cause a detriment on this.

> > These are no claims, but the plain GPL. All right
> > to distribution under the GPL are lost if you don't comply with the GPL,
> Which is precisely why we aren't going to deliberately not comply with
> the GPL, no matter what you suggest.


> I believe that distributing firmware written in chunks of hex is in
> compliance with the GPL, and repetition of your arguments isn't going
> to change that belief.

Maybe, but the real argument is not over if it is distributable or not, but
that we cannot publicly say so, over we should say so, in order to get more
weight later on. I doubt we have a choice anyway, since there is ample
evidence for a court to come after us in the mailing list archive, if they
would do so.

That said, it is the upstream vendors only who could sue us, and i doubt they
will gain a judgement in this, because by placing those firmwares under the
defacto GPL, they promised to give the source code for it, which they didn't.

> >   We recognize that there are a number of firmwares in the kernel who are
> >   sourceless and implicitly under the GPL. We believe these are mistakes on
> >   the copyright holder part, who didn't understand the full measure of what
> >   they where doing in releasing those firmwares in this fashion. We will work
> >   with those vendors to either provide the source of those GPLed firmwares,
> >   clarify their licencing, as was done with broadcom and qlogic, or give us a
> >   statement indicating these are just plain register dumps.
> Apart from grammatical/stylistic issues ("firmware" is plural already;
> it's not "implicitly" under the GPL, blahblah) I have no problems with

why you say it is not implicitly under the GPL ? do you have a better wording
for it, or rather for the version found on the wiki page ?

> that. It's a different statement to "We believe this violates the GPL,
> but we're going to do it anyway", though.

Well, it doesn't hide the fact, and says exactly what we will do, and why.

> I don't personally think that statement needs to be part of a GR though;
> I think the kernel team can say that on their own with equal authority,
> and probably more effectiveness (since unlike 90% of the project, you're
> actually deeply familiar with kernel issues...).

I disagree here, for two reasons. There will be a part of the voters who
believe that we should get ride of the GPLed sourceless firmware, and who will
feel betrayed over the result of the vote, and we really don't need another
one of those 'traitorous' GRs, and furthermore there is the point of making
this GR a position statement to vendors out there.

> > Well, it is a violation of the implicit GPL licence of this file, and any
> > amount of hiding your head in the sand will not change that plain fact.
> I'm not convinced it's even a violation of the spirit of the GPL really;

sourceless code is not a violation of the spirit of the GPL ? You probably
have read a different GPL than the one shipping in debian :)

> but it's certainly a violation of the spirit of the DFSG, and hence
> something we should keep working on to fix.

Indeed, and making a strong and clear position statement now, will only help
us later to fix it.


Sven Luther

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