GPL does not decide where it's applicable or not

GPL does not decide where it's applicable or not - the law does

Posted Oct 15, 2008 14:08 UTC (Wed) by khim (subscriber, #9252)
In reply to: Don't mix you desires with facts! by paulj
Parent article: Linux Summit will preview new advanced file system (SearchEnterpriseLinux.com)

The GPL and the modification conditions apply to the preferred form of the sources - not derived binaries (directly at least).

Novel idea. So you claim that I can add any proprietary code to linux as long as I'm not modifying source, but only binary by the way of hex editor? Sorry, if you got this theory from a lawyer, you need to find a new one, methinks.

You are mixing cause and consequence. Where and how GPL applies can not and does not written in GPL. Some jurisdictions allow some [limited] form of modifications without license (for example you can reverse-engineer stuff if it's the only way to make it work in Norway - see DVD John), some do not. Read this for example. MDY tried to claim that EULA does not apply to it because it never agreed to its terms, but court decided that they still illegally modified the code in memory - and if it's not allowed without appropriate license then that means GPL should explicitly allow it. It does not.

It's pretty clear that GPL does not contain permissions to make such a combination, but do you even NEED such permission? That's the question. It depends on many-many details and can differ from country to country and even from court to court! That's why I never said "yes" about such a thing and never said "no": YMMV. And yes, I've discussed this with actual lawer (it was about combining GPL and CDDL code - though not about linux kernel and ZFS).

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GPL does not decide where it's applicable or not - the law does

Posted Oct 15, 2008 14:57 UTC (Wed) by paulj (subscriber, #341) [Link]

I didn't claim that. :) The binaries are also subject to conditions under the GPL.

As for in-ram-linking-as-modification: just look at the modification licence, its framed in terms of conditions that are really only relevant to fixed, distributable copies. It seems very unreasonable, to me, to think the framer had transient modifications in mind. It is then reasonable to think that the alternative is to consider that such transient modifications, made in the course of running, must then be covered by the 'running is unrestricted' permission.

That this has been the prevailing wisdom for a long time (e.g. the GPL FAQ, that NVidia are happy to distribute binary-only drivers for users to load with their GPL kernel, etc..) suggests strongly that your lawyer's interpretation is beyond the pale.

IANAL, my view is based primarily on assessing the words and actions of those who have (had) significant matters at stake, ICBW, etc.

Prevailing wisdom? May be in your head...

Posted Oct 15, 2008 16:48 UTC (Wed) by khim (subscriber, #9252) [Link]

As for in-ram-linking-as-modification: just look at the modification licence, its framed in terms of conditions that are really only relevant to fixed, distributable copies.

Bingo. And what does it mean? Right: you go back to copyright law. Does it allow this particular modification or not? YMMV. You've been warned.

That this has been the prevailing wisdom for a long time (e.g. the GPL FAQ, that NVidia are happy to distribute binary-only drivers for users to load with their GPL kernel, etc..) suggests strongly that your lawyer's interpretation is beyond the pale.

GPL FAQ says: if Sun will produce internal ZFS driver for Linux GPL will not force a disclosure - Sun will be free to use it internally. Good, but hardly relevant. NVidia does not distribute GPLed code at all - so again, not a problem. As for "prevailing wisdom"... Who's wisdoms is this? Not mine - that's for sure. When at least one distribution was closed over GPL troubles, when Linus says 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, when you can see things like Oh, and at least one major distro has been served with legal papers due to them shipping closed source kernel drivers, and more are on the way (I'm not sure if it was Kororaa or not, but I sure as hell know that Novell wrote Most developers of the kernel community consider non-GPL kernel modules to be infringing on their copyright. Novell does respect this position, and will no longer distribute non-GPL kernel modules as part of future products) it sure looks to me like "prevailing wisdom" says the following:
1. It's illegal to distribute non-GPLed drivers with GPLed kernel. If you are not sued today that only means your time didn't come. Yet.
2. If you are distributing non-GPLed drivers on separate medium you are probably Ok, but be ready to prove this to court.
3. End-users are probably violators too but we don't have money or willpower to sue. The only thing we can do is drop support - and we are doing it.

Basically it means: CDDLed ZFS can not be included in kernel. No way, no how. It'll be infringment - plain and simple. Separate distribution is probably Ok, but watch your back. Oh, and distributors can not include it in distribution too.

Do you really think there are a future for ZFS in a position like this? Permanently ostracized without any hope to be ever included in the trunk and without any support from kernel developers? I sincerly doubt it.

If your lawers claim that when you are interpreting the license you can safely ignore opinion of guys who actually wrote the code under said license and still keep the copyright... then you are beyond caring, I afraid... Linus and Co always said one thing and thing only: we can not force GPL on non-derived work. No way, not how. And this is the only reason why non-GPLed modules can exist.

Prevailing wisdom? May be in your head...

Posted Oct 15, 2008 17:24 UTC (Wed) by paulj (subscriber, #341) [Link]

Firstly, I don't speak for Sun at all, at all... I have never talked to Sun legal about the CDDL - so there aren't even lines to read between. I have no special knowledge, bar a modicum of knowledge of the internal culture.

Your long post is interesting, and I agree that Linux contributors can not incorporate GPL-incompat code because of GPL licence concerns - presuming they can not agree to allow themselves to do so. To be clear: at no stage have I argued that point, and I have no interest in discussing it.

My main point here was to counter the FUD that Sun would sue for CDDL infringement.

Anyway, dinner :)