The 2.6.28-libre kernel is out

That the exclusion power of copyright cannot be used to stop certain uses doesn't mean the code doesn't qualify for copyright. I very much doubt you'd be able to get the same kind of exception the courts allowed, for Lexmark clone cartridge manufacturers to duplicate creative works added for the specific purpose of using copyright to prevent interoperability, to the non-Free programs that run on peripherals' CPUs, and that could be programmed differently and would function just fine, if only we knew how to make such arbitrary programs for them. But hey, IANAL, give it a try and maybe we'll all get lucky.

Not that getting permission to distribute those bits (which we already have, at least for some of them) would do much towards enabling them to be lawfully distributed as part of a larger GPL work. The interoperability claims would hardly get you permission to modify the work as extensively as required by the GPL. And, if you distribute it nevertheless, *any* of the copyright holders might notify you that your license is terminated, and get an injunction to stop you from modifying, distributing and, in some countries, even running the program, regardless of who induced you to the error. Then what? Why would you accept that kind of risk, when there are much safer alternatives?