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GPL and Linux loadable kernel modules

GPL and Linux loadable kernel modules

Posted Aug 12, 2005 17:22 UTC (Fri) by GreyWizard (guest, #1026)
In reply to: GPL and Linux loadable kernel modules by giraffedata
Parent article: Interview: Eben Moglen

Actually, it's simpler than that. Although I've never seen how it fits into copyright law, US copyright law gives the author the right to control "preparation of derivative works."

Simpler? That seems more complex to me because going after end users would be a nightmare, even if you're right about the law. (Are you sure you're not confusing copyright law with contracts in end user license agreements? Could you cite a source?) Why is that simpler than accusing the vendor who provides the module of inducing infringement, especially given that many have succeeded in similar actions?

But I'm surprised that Moglen believes everyone agrees that GPL doesn't permit linking non-GPL modules dynamically. From reading LWN, I believe it's a well established fact that there's disagreement on that.

Maybe, but the FSF has consistently explained their opinion that dynamic linking has the same effect as static linking for derivative works. A court ruling would be necessary to really settle the point. I don't know about you, but Moglen has a law degree and much relevant practice so his opinion on this is worth something. His position makes intuitive sense too, at least to me. The difference between dynamic and static linking is purely technical and doesn't seem to be relevant to whether something is a derivative work.

What does seem to be relevant -- and this is the heart of the issue -- is what Linus Torvalds has pointed out. When code desinged and published independently of Linux is ported it is hard to determine whether this is a derivative work of the kernel, if only because Torvalds and other kernel copyright holders have said so. Will those copyright holders tolerate binary only modules that implement specifications that are independent of Linux and don't stray beyond the GPL-only boundaries established by the module system? They have so far but that doesn't mean they always will. Moglen seems to want a reliable answer one way or another.


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GPL and Linux loadable kernel modules

Posted Aug 13, 2005 3:42 UTC (Sat) by giraffedata (subscriber, #1954) [Link]

I didn't read your post closely enough. Looking at it now, I see that you're not addressing the parent poster's claim that doing an insmod isn't a copyright violation. Instead, you're talking about the guy who supplied the LKM to insmod violating copyright. However, without establishing that doing the insmod is a copyright violation, I don't see how you could possibly argue that supplying the LKM violates copyright law by inducement.

In any case, there's nothing simple about making an inducement argument. This is fairly new law, and judge-made (that's why there was so much uncertainty about how Napster would turn out). By contrast, the derivative work law starts out in statute, and has been refined for about 100 years.

Check out the US Copyright statute, Title 17 of United States Code. (Just google "derivative work"). It lists the 6 exclusive rights that copyright law creates. #2 is "the right to prepare derivative works based on the copyrighted work." It is, of course still up in the air whether insmod qualifies as preparing a derivative work, but you can find plenty written on the idea that modifying a program for your own use qualifies. GPL enumerates preparing a derivative work as a specific right the licensee gets.

I agree that Eben Moglen and FSF believe and have always believed that insmodding is within those exclusive rights of the copyright holder. I only commented on what Moglen said about what everybody else believes.

By the way, Moglen's law degree doesn't mean squat here. A law degree from a US law school means you know the fundamental concepts of US law and have a broad overview of various areas of law -- all possibly as of 40 years ago. It doesn't mean you know the law of any particular jurisdiction or enough about any area of law to avoid embarrassing yourself in front of a judge. I know because I have one. BUT: I respect Eben Moglen's opinion because of his extensive study of copyright law and practice in the area. I have none (what I know about copyright law is mostly via LWN. I did learn some in law school, but have forgotten all that).

GPL and Linux loadable kernel modules

Posted Aug 13, 2005 20:09 UTC (Sat) by GreyWizard (guest, #1026) [Link]

Looking at it now, I see that you're not addressing the parent poster's claim that doing an insmod isn't a copyright violation.

Well, in fact I was though perhaps not clearly enough. My point was that attempting to push responsibility for binary modules from a vendor to end users, which is what we are doing when we reframe the problem in terms of insmod, is not likely to succeed. This is why I made the comparison to Napster and Grokster.

However, without establishing that doing the insmod is a copyright violation, I don't see how you could possibly argue that supplying the LKM violates copyright law by inducement.

If a binary kernel module is a derivative work of the kernel then distributing it is copyright infringement unless those who hold the kernel copyrights give permission, which they have not done by releasing under the GPL. Creating it in the first place is explicitly permitted by the GPL. So I guess I didn't read your post closely enough either: rather than calling your approach complex I ought to have said it was simply doomed. I also mispoke, perhaps still thinking of the comparison to Napster, when I mentioned inducing infringement. Distribution of derivate works is what I meant.

Perhaps now you understand why I think this is simpler than fretting about whether invoking insmod can be copyright infringement. Even without the GPL that hinges on strange questions about fair use and the way computers work -- not to mention the public relations problem suing potential customers represents. The distribution angle seems cut and dried by comparison. Both approaches require settling thorny questions about derived works which, not to put too fine a point on it, is the original topic here.

By the way, Moglen's law degree doesn't mean squat here. [...] BUT: I respect Eben Moglen's opinion because of his extensive study of copyright law and practice in the area.

Here is the text you are responding to: "I don't know about you, but Moglen has a law degree and much relevant practice so his opinion on this is worth something." The law degree is indeed important here, if only because without one such relevant practice would be illegal.

GPL and Linux loadable kernel modules

Posted Aug 13, 2005 20:32 UTC (Sat) by giraffedata (subscriber, #1954) [Link]

The law degree still isn't relevant because it isn't relevant to your argument whether the law practice of which you speak is legal.

There are cases of people practicing law illegally for long periods of time, and people generally admit that these people have, and have gained through the practice, expertise equivalent to what legal practitioners have.

Incidentally, there are still some states where there are ways to practice law legally without a degree. You always have to have a license (except in the case of some elected judgeships), but a degree isn't always a prerequisite to a license.

GPL and Linux loadable kernel modules

Posted Aug 15, 2005 14:25 UTC (Mon) by GreyWizard (guest, #1026) [Link]

The law degree still isn't relevant because it isn't relevant to yourargument whether the law practice of which you speak is legal.

I didn't know that one could get a license to pratice law without a law degree, so thank you for enlightening me on that point. Still, my error in conflating the two doesn't undermine the point I was making (since you start with "incidentally" I suppose you agree). Similarly, those who do practice law illegally probably have less experience on the whole than their licensed colleagues who are less likely to be jailed. At any rate claiming someone has credibility because they practice illegally probably isn't a useful argument.

I mentioned Moglen's law degree in the context of supporting his opinion on dynamic linking and derivative works. I did not say such support was absolute, that it should end the discussion or that people without law degrees cannot be right where he is wrong. I also accept that someone who practices law but works as, say, a divorce attorney or public defender might know less about copyright law than someone who reads LWN obsessively. Nevertheless it seems obvious that someone who spends time studying the law is in general more likely to have a correct opinion on a legal question than someone who doesn't, at least in the absence of more specific details. Thus a law degree lends legitimate credibility to opinions about the law, just as being any kind of trained professional lends credibility to opinions about that particular domain. I stand by my original statement.


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