[svlug] (forw) [conspire] ZFS, Ubuntu, and Eben Moglen & Mishi Choudhary

Rick Moen rick at linuxmafia.com
Mon Mar 14 21:55:51 PST 2016

I wrote:

>   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


It's a short piece that starts out:

  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

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

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.                                                          

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