Out-of-tree drivers don't have to be GPL (well, that's a up to debate, but there are certainly proprietary drivers).
That is not really true. I am not aware of anything that allows a Linux kernel driver to be non-GPL. The only gray area is if the driver has been ported from another OS, and this is also questionable. I have seen more than one clear statement from Linus Torvalds on this subject.
There is no question that people violate the Linux GPL all the time. It is ethically disgusting (although I actually understand very well why they do it).
But in any case, a stable source API has not relevance to that problem.
And even if it's GPLed, if it's out of tree then there's a good chance that it doesn't meet the coding standards for inclusion into the kernel - for example a company typically might have a single source for Windows and Linux, with hundreds of #ifdef's to switch between them. There is also often a custom build system, revision control system, etc.
And that is bad because? The current standards are needed because the kernel developers have to be able to "maintain" (more like coax into compiling) a mountain of drivers they don't care about. If the drivers are maintained by interested 3rd parties, it doesn't matter in the least, and those 3rd parties should choose whatever standards of their own they prefer.
So this means that once the company goes bankrupt, some volunteer has to take code that he's probably never looked at before and undertake what could be a large task to clean up and adapt the driver for inclusion into the kernel.
I am sorry but this is a logical fallacy. This volunteer is free to develop a driver of his own using his superior coding standards from day one. Plus, surely having an existing working driver is much better than starting from scratch.
Look, I am well aware that the idea for a stable API is not popular and for sure I am not the best advocate for it. I actually don't think that a stable API will happen. But I also know what I am seeing in my professional life and it doesn't look good.
Also (sorry to repeat myself) it is clear to me that with the current situation Linux will never be really successful on the desktop. The stable API is just one of the several reasons for that, but it isn't a small one.
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