GPLv2 enforcement

Posted Mar 22, 2007 17:43 UTC (Thu) by drag (guest, #31333)
In reply to: GPLv2 enforcement by bug1
Parent article: The Torvalds Transcript (InformationWeek)

I was pretty convinced of this also for a while.

But I was corrected.

The FSF and friends stating that linking code against GPL code would require that all the code is GPL is simply _wrong_ and _misleading_.

The reality of the matter is that it's up to a Judge to decide what is and what is not derived work. The GPL is a copyright license and by it's nature is limited by the scope of copyright.

The issue of 'derived work' is _intentially_ left up the open by law and is completely a matter of jurisdiction, interpretation and such things. It is not something that the GPL or FSF or anybody else has any control over.

So the thing is is that you _can_ violate the GPL by having a propriatory kernel module, but not nessicarially all kernel modules are in violation.

The Nvidia Linux driver, at it's core, is the same code as what is used in the Windows driver. Not that I know this for a fact, but it's just that that's what I am told.

Also the OpenAFS driver is based on code that existed long time before Linux even existed.

Both of these drivers are using code that existed completely independant from any sort of code that is in the Linux kernel.

Sure they know about kernel internals and such things, but that is required to make the software compatable and modifing code for compatability doesn't mean that it's derived, right? Of Course not.

Now with Linux you have all this modularity. You have the VFS and all sorts of functionality that people remove from individual drivers and then lump it all together in one system.

Like sound drivers and the sound core.
Or Sata drivers and libata and the scsi subsystem.

Now if I was to try to make a propriatory sound card driver, but used a crapload of alsa functionality to do that, then I would more then likely be in violation of the license and any kernel developer in any parts of Alsa would be be free to sue the pants off me.

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GPLv2 enforcement

Posted Mar 23, 2007 6:39 UTC (Fri) by gmaxwell (guest, #30048) [Link] (1 responses)

>The FSF and friends stating that linking code against GPL code would require >that all the code is GPL is simply _wrong_ and _misleading_.

>The reality of the matter is that it's up to a Judge to decide what is and >what is not derived work. The GPL is a copyright license and by it's nature >is limited by the scope of copyright.

You were corrected incorrectly, or at least incompletely.

When someone other than the copyright holder distributes GPLed covered software, he does so only by the good graces of the license. The license could, for example, demand that the software only be distributed inside fortune cookies.

A court might decide to invalidate an instance of the license, but without a license you are not able to distribute the software, at least not without performing an actionable copyright infringement.

Thus, in cases where both GPL and non-free parts are distributed by the same party the license can effectively enforce whatever byzantine interpretation of derivative is desired.

The GPLv3 specifically avoids standard legal terms in order to avoid creating confusion like this. Instead the license adopts new terms and defines them clearly in the license.

Obviously the case of separate distribution is another matter entirely, but I'm not aware of anyone sane trying to argue against such cases on legal grounds.

GPLv2 enforcement

Posted Mar 23, 2007 7:22 UTC (Fri) by drag (guest, #31333) [Link]

Well distribution is covered elsewere the license also. Don't forget that.

Also, as you are aware from Microsoft EULA goes.. just because somebody has something in a license it doesn't mean that it's enforcable, even if you agree to it. I don't know how far that goes.

But there is a nasty little clause in the GPLv2 that goes as follows:
(in section 2)

""In addition, mere aggregation of another work not based on the Program
with the Program (or with a work based on the Program) on a volume of
a storage or distribution medium does not bring the other work under
the scope of this License.""

So you _can_ distribute non-derivative (see the portion immediately before the part I quoted.) work along with GPL'd software then the GPLv2 license expressly states that it is not covered under the terms of the GPLv2 license.

In other words,
A: If code is non-derivative then it's not covered under the terms of the GPLv2.
And
B: The license expressly allows it's distribution along side non-GPL works.
So
C: Therefore if a kernel module is non-deravitive then it's legal to distribute it along with the kernel.

IF its non-derivative. It's gray.. so some can and will violate while others won't.

("Deravitive" IS a well established legal term, btw. It's defined as part of the US copyright code. Of course in other countries this may vary, but I am operating under US law.)

http://www4.law.cornell.edu/uscode/html/uscode17/usc_sec_...