Question Regarding GPL

Akshay:

As you can see from the debate that you kicked off with your
question,
this is a complicated issue for which there are differing
opinions (both
from the court, and from people who work with Linux).  You
really should
be going to the legal department at Analog for advice on
this.

McCoy Smith
Intel Legal 

-----Original Message-----
From: Rick Moen [mailto:ricklinuxmafia.com] 
Sent: Friday, January 20, 2006 3:59 PM
To: license-discussopensource.org
Subject: Re: Re: Question Regarding GPL

Quoting Ben Tilly (btillygmail.com):

> I'm not sure whether you're agreeing or disagreeing
with me.

Welcome to the law.  ;->

> It is obvious that a loadable module can be derivative
of the Linux
> kernel.  Just start with a piece of the Linux kernel
and make it into
> a loadable module.  The question is whether it is
possible for a
> loadable module to not be derivative of the Linux
kernel. 

Yes, very succinctly put.

> Linus's stated opinion is that it is possible.  My
admittedly
> uninformed opinion is that he is right.

To my knowledge, his most recent statement was on
2002-10-17, as follows
(in part):  

  The _only_ thing that allows for non-GPL modules is
copyright law, and
  in particular the "derived work" issue. A vendor
who distributes
non-GPL
  modules is _not_ protected by the module interface per se,
and should
  feel very confident that they can show in a court of law
that the code
  is not derived.  [...]

  The original binary-only modules were for things that were
  pre-existing works of code, i.e., drivers and filesystems
ported 
  from other operating systems, which thus could clearly be
argued 
  to not be derived works, and the original limited export
table 
  also acted somewhat as a barrier to show a level of
distance.

By "derived work", Torvalds meant "derivative
work" as used as a term of
art within copyright law.

My point, in any event, was that the factual question would
be resolved
by a court not by consulting Torvalds's or anyone else's
opinions, but
(in USA jurisdictions) by applying the Altai test to the
allegedly 
infringing code.


> Many people have released drivers that depend on that
opinion being
> correct.

Note:  Torvalds's opinions on the matter have been known to
change
dramatically, without advance notice.  Compare his
1995-12-17 and
2002-10-17 proclamations on LKML, as archived here: 
"Proprietary Kernel
Modules" on http://linuxmafia.co
m/kb/Kernel/


> What you've said is that the correct test to use is the
one described
> in that decision.  I just read that decision, and I am
left no more
> able to answer the fundamental question than I was
before.

My old landlord and colleague Richard Couture had a saying
-- harsh, 
but relevant:  "Sorry to hear about _your_
problem."  ;->  The relevant
test is the one that will be applied.  I'm just telling the
truth.

[Micro Star decision:]

> I don't see the relevance.  U

Relevance is that non-literal copying can infringe, and that
copyright-encumbered content isn't necessarily limited to
code.