[conspire] ZFS, Ubuntu, and Eben Moglen & Mishi Choudhary

[Rick Moen]

I wrote:

> http://blog.dustinkirkland.com/2016/02/zfs-is-fs-for-containers-in-ubuntu-1604.html
>
>   Dustin Kirkland
>
>   Our lawyers have examined the licenses in detail and we see no problem.
>   ZFS remains CDDL and the Kernel GPL. zfs.ko ships as a kernel module.

Kirkland followed up two days later with a similar piece in these two
places:

https://insights.ubuntu.com/2016/02/18/zfs-licensing-and-linux/
http://blog.dustinkirkland.com/2016/02/zfs-licensing-and-linux.html

It's a short piece that starts out:

  THURSDAY, FEBRUARY 18, 2016
  ZFS Licensing and Linux

  We at Canonical have conducted a legal review, including discussion
  [link] with the industry's leading software freedom legal counsel, of
  the licenses that apply to the Linux kernel and to ZFS.  And in doing
  so, we have concluded that we are acting within the rights granted and
  in compliance with their terms of both of those licenses.  

OK, here's a real head-scratcher:  The cited link is to Eben Moglen &
Mishi Choudhary's slightly bizarre article at Software Freedom Law
Center that ducks around trying to suggest Ubuntu's move should be
tolerated on grounds of the 'equity of the [GPLv2] license', or its
'spirit' -- and that the authors hope plaintiffs in any infringement
lawsuit are not granted an injunction.  As extremely odd as Moglen &
Choudhary's reasoning is, _they still conclude it's copyright
infringement_.

So, did Mr. Kirkland bother to read what Moglen & Choudhary _said_
before linking to them as what 'the industry's leading software freedom
legal counsel said' -- but just failed to notice they _didn't_ really
support Canonical's position?  Or did he understand that, and cite the
article anyway?

Kirkland's note at the bottom:

  EDIT: This post was updated to link to the supportive position paper
  from Eben Moglen of the SFLC [link], an amicus brief from James 
  Bottomley [link], as well as the contrarian position from Bradley Kuhn 
  and the SFC [link].

So, Kirkland feels Moglen (and Choudhary) was 'supportive'.  Hmm, not
really; read it again, Mr. Kirkland.

James Bottomley's blog posting is at
http://blog.hansenpartnership.com/are-gplv2-and-cddl-incompatible/ ,
where I've just posted a couple of comments:  The crux of Bottomley's 
argument is that plaintiffs in copyright infringement tort cases must 
show 'quantifiable harm' that cannot be shown in this case.

Unfortunately for Bottomley's position, that is simply not true, as can
be seen from the plain language of the Copyright Act (for USA copyright
law).  

Bradley M Kuhn and Karen M. Sandler's rather gentle but firm Software
Freedom Conservancy article is here:
https://sfconservancy.org/blog/2016/feb/25/zfs-and-linux/ Kuhn 
Essentially, they assume Canonical is taking its position in good faith
and on the basis of legal advice, but conclude that the position is dead
wrong and explain why.







> Into this parade of badness now steps attroneys Eben Moglen & Mishi
> Choudhary of Software Freedom Law Center, with a major display of
> gratuitous WTFery:
>
> http://softwarefreedom.org/resources/2016/linux-kernel-cddl.html




> http://arstechnica.com/gadgets/2016/02/zfs-filesystem-will-be-built-into-ubuntu-16-04-lts-by-default/
> http://blog.dustinkirkland.com/2016/02/zfs-is-fs-for-containers-in-ubuntu-1604.html
> 
>   Dustin Kirkland
>  
>   Our lawyers have examined the licenses in detail and we see no problem.
>   ZFS remains CDDL and the Kernel GPL. zfs.ko ships as a kernel module.
> 
> 
>   Matthew Garrett
>   +Dustin Kirkland Your lawyers disagree with (a) other lawyers, (b) the
>   FSF and (c) several kernel copyright holders. It should be made clear
>   that while you feel that you're legally justified in doing this, you're
>   definitely violating the expectations of many other parts of the
>   community in doing so.
> 
> 
>   Simon Phipps
>   +Matthew Garrett Setting aside the question of license compatibility
>   itself for a moment, and given it's 100% free software that's involved
>   here, why would a license incompatibility in this case provoke a fury
>   usually reserved for proprietary abuse?
> 
> 
>   Matthew Garrett
>   +Simon Phipps The legal arguments we have against proprietary drivers
>   are fundamentally about license compatibility, and normalising the idea
>   that we can ignore license compatibility as long as the components in
>   question are free weakens the legitimacy of our arguments against
>   proprietary drivers.
> 
> 
> So, we basically have yet another example of Canonical, Ltd. behaving in
> a sociopathic way, in this case deciding to ignore the expressed views,
> preferences, and explicit licensing terms of Linux kernel coders and
> dare them to sue.  Hilarity may ensue.
> 
> 
> Into this parade of badness now steps attroneys Eben Moglen & Mishi
> Choudhary of Software Freedom Law Center, with a major display of
> gratuitous WTFery:
> 
> http://softwarefreedom.org/resources/2016/linux-kernel-cddl.html
> 
>   The Linux Kernel, CDDL and Related Issues
> 
>   Eben Moglen & Mishi Choudhary
>   February 26, 2016
> 
> This is a quite long, closely reasoned piece but pretty lucide even for
> novices on the subject -- by two expert authors and open source / free
> software licensing pundits.  Prof. Moglen has had very long and close
> association with FSF and lead the legal side of the drafting of GPLv3,
> for example.  
> 
> What is Software Freedom Law Center?  It's Moglen, Choudhary, and
> Jonathan D. Bean operating as a semi-public interest law firm.
> http://softwarefreedom.org/services/
> 
> In the current piece, Moglen & Choudhary recap the GPL/CDDL issue in
> detail, and it's possible to get lulled into inattention by the sonorous
> and lucid prose.  The WTFery starts near the end:
> 
>   Richard Stallman and I both felt, and said publicly, that the issue
>   was a close one under a literal interpretation of GPLv2, but that the
>   combination involved plainly fell within the equity or spirit of GPLv2. 
>   [...]  In US copyright law, the meaning of any license is determined
>   by the intentions of the licensor: because a license is a unilateral
>   permission by a holder of otherwise exclusive rights, the law holds that
>   the licensor gives neither more nor less permission than the evidence
>   shows it actually intended.
>   [...]
>   No existing record conclusively or convincingly demonstrates whether
>   the only relevant licensing community, the holders of kernel copyright,
>   intends a literal or equitable interpretation of its license terms under
>   present circumstances. As so often in the long history of our law, both
>   literal and equitable postures of interpretation are completely tenable,
>   and reasonable people in the relevant roles may justifiably disagree. 
> 
> WTF?  In any case of copyright infringement, judges look to the wording
> of any explicit licence terms.  There is no weighing of 'equity or
> sprit'.  This is nonsense, and Moglen knows it.
> 
>   [Discusses the Canonical announcement, then:]
> 
>   If there exists a consensus among the licensing copyright holders to
>   prefer the literal meaning to the equity of the license, the copyright
>   holders can, at their discretion, object to the distribution of such
>   combinations. They would be asserting not that the binary so compiled
>   infringes their copyright, which it does not, but that their exclusive
>   right to the copying and redistribution of their source code, on which
>   their copyright is maximally strong, is infringed by the publication of
>   a source tree which includes their code under GPLv2 and ZFS filesystem
>   files under CDDL, when that source tree is offered to downstream users
>   as the complete and corresponding source code for the GPL'd binary.
> 
>   In response to such an objection, all distributors would no doubt cease
>   distributing such combinations, which it would remain perfectly legal
>   and appropriate for users to make for themselves. An objectively
>   reasonable good-faith belief that the conduct falls within the equity of
>   the license, until such time as the licensors state that they are
>   interpreting the license literally, would be a full defense against
>   claims of intentional infringement. A party swiftly adjusting its
>   behavior in response to complaint is not an appropriate object of
>   request for injunctive relief, [...]
> 
> So, basically, Moglen & Choudhary are pronouncing in advance that the 
> Linux kernel coders insisting that GPLv2 _means GPLv2_ would be
> unreasonable and mean, given that Canonical intends to comply with the 
> 'equity or sprit' of the terms they specified, and, gosh, although they 
> could object and get Canonical to avoid infringing their copyright, 
> it'd be wrongful for them to do that, and they should not be awarded an
> injuction.
> 
> What the Actual Fsck, Moglen and Choudhary?  When did you become PR
> shills for copyright infringement?  
> 
> 
> Here is a third-party analysis of this bizarre situation, by one Serge
> Wroclawski:
> 
> http://blog.emacsen.net/blog/2016/02/28/why-is-sflc-siding-with-oracle-over-linux-developers/
> 
> And one by Tom Marble:
> http://info9.net/wiki//tmarble/posts/is-slfc-shooting-open-source-in-the-foot/
> 
> 
> Both are worth reading.  For anyone reading Tom Marble's comment, he 
> overstates the truth here:  
> 
>    A lawyer I respect called this out: "Equity" has no place in US law.
>    [link]  The point is that for lawyers software licenses work because 
>    they have clear, written rules to guarantee the spirit is upheld; 
>    but spirit doesn't work in front of a judge -- clear rules do.
> 
> The link is to a Twitter exchange with Pamela S. Chestek, 'IP' attorney in
> Raliegh, talking to ex-Sun computer scientist Simon Phipps:
> 
>    Simon Phipps:
>    Again, doesn't SFLC's theory deal with that?
> 
>    Pamela S. Chestek:
>    It does not. It is no place in US contract law for "equity" when
>    there a written agreement. You follow the terms, period.
> 
> Exactly so.
>