

Re: Fedora Freedom and linux-libre

On Jun  8, 2008, David Woodhouse <dwmw2 infradead org> wrote:

> That's nothing special -- it's just the same as we should always be
> vigilant for someone slipping non-GPL'd _code_ into the kernel.
> Should we just give up, just because people slip up occasionally?

Certainly not.  But unfortunately it's not just the same.

Slipping non-GPL code into the kernel would be a license violation.
Legal issues tend to carry a lot more weight than "weaker" policy
mandates (*)

But what I'm more concerned about has nothing to do with copyright
infringement.  It has to do with respecting the 4 essential freedoms.
Not just firmware.  Drivers developed under conditions that deny users
the ability to study the source code, understand it, and adapt it to
their own needs do not respect freedom #1, even if they are perfectly
compliant with the GPL.  And I very much doubt think anyone would
succeed in removing from, or preventing the addition of drivers to,
Linux just because documentation is unavailable and the source code is

If most head Linux developers go to such great lengths to find and
wield excuses (*) to justify and defend the addition of code that is
so obviously obfuscated and disrespectful of users' 4 essential
freedoms (blobs), why would NDA-obscured drivers get treated any more

This is not a case of slipping up.  Those are easy to fix, if policies
were taken seriously.  This is (tacit or explicit) policy based on
priorities, "corporate culture", and values held within the team that
develops the software.

Same thing here in Fedora.  How can the policy to make an exception
and accept some non-Free software "because it's essential to some
users" make sense when other pieces of software that are just are
non-Free and just as allegedly essential are banished on the grounds
of being non-Free?  "But it runs on a separate processor" doesn't even
begin to relate with the alleged reasons of their being essential.

(*) I wouldn't qualify the distribution of blobs in the Linux kernel
as a legal risk these days, and my guess is that this is the sort of
opinion that Linus got when he asked his lawyers about it.  Consider
this: (i) who could possibly claim infringement, and (ii) what would
the consequences be?

(i) copyright holders of Linux and of the blobs

(ii) automatic termination of the license for everyone who has ever
distributed the infringing version

So, you see, why would a Linux copyright holder push the button if the
mass destruction would take themselves down just like everyone else?
At this point, given the tacit and vocal acceptance of this kind of
code in the kernel, it would even be hard to defend a claim of
secondary liability for induction to infringement by the parties who
contributed the code to Linux, or by the parties who accepted it.

Now, why would any of the copyright holders of the blobs push the
button if the result would be the removal of the code that quite
likely they contributed themselves in order to support the hardware
they sell?  That would be little more than FUD and sabotaging.

So, no, I don't see any material legal risks in distributing non-Free
Linux as it stands today, but this doesn't mean it's permitted by the
license or by copyright law.  As I stated before, it's a moral,
ethical and social issue, even if it's also a negligible legal issue.

Alexandre Oliva         http://www.lsd.ic.unicamp.br/~oliva/
Free Software Evangelist  oliva {lsd ic unicamp br, gnu.org}
Red Hat Compiler Engineer   aoliva {redhat com, gcc.gnu.org}
