Proprietary loadable kernel modules

I'm merely trying to impress upon people that if you look at the actual code outside of the __KERNEL__ defines; and the actual code inside of the __KERNEL__ defines; unless you can identify differences in the inherent expressiveness of that code without substantially relying on practical intentions about making it difficult to create derivative binary modules, then by asserting *all* of the code outside of those defines is not copyrightable, you're also asserting that much of the code inside of those defines is likewise not copyrightability.

These are important distinctions (or lack thereof), because there is no shortage of very well regarded copyright lawyers and judges who believe almost no source code or software should be copyrightable. And they believe that because of expressivity concerns. But I'm not making a slippery slope argument, merely trying to point out that the legal issue turns on expressivity. If you think that expressivity primarily turns on the prevalence of logical operators and conditional statements (i.e. what we consider to constitute the body of functions), then you're already down the wrong path. Those things principally describe process; as such, they are considered more often not matters of copyright but of patent; things generally regarded as mutually exclusive. As they aren't expressive elements per se, it would be imprudent to suggest that code which does not implicate them does not implicate copyrightability at all. That is, if you care about the enforcement of copyleft license covenants.