"No, I'm afraid that's incorrect. I didn't even consider the "preprocessor analogy" when writing the article. I don't think it weakens the case that Red Hat is not violating the GPL either."
Ah. I must wistfully admit that I wish you'd had a phone conversation or brief email exchange with Mr. Corbet about this, then. It seemed to be an example that was eminent in his mind when he commented in the past week or so.
"Red Hat distributed its kernel the same way that various other projects have distributed theirs (including FSF projects)."
The FSF has copyright in most of the works they distribute, and I can assure you with near-certainty (as I work professionally in this area) that for their most popular and well-known works (glibc, gcc, gdb, bash, ncurses, binutils, etc.) that what little third-party copyrighted code is present is *not* under the GNU GPL, but under far more permissive licenses, such as BSD-style without the advertising clause, the MIT/X11-style license, or others closely resembling the foregoing, none of which mandate redistribution of source forms at all.
Red Hat, as a licensee of the Linux kernel under the GNU GPL, has a responsibility not only to their downstream users but to the other copyright holders in the kernel as well.
Maybe all of the other copyright holders in Linux are cool with this decision. Or maybe they're not, but don't feel they have sufficient resources to pick a fight with a well-heeled public corporation. Or they're not, but have a personal affinity with Red Hat kernel engineers and feel a sense of gratitude to the firm for offering their friends employment. Or they're not, but feel that Red Hat is still a net positive force in Linux kernel development. LWN could try interviewing some of them to find out what they think.
Copyright law is only one avenue of persuasion. Another is the court of public opinion. I had hoped that LWN, as the news outlet of record in Linux kernel development, would have taken a stronger stance against this move.
What Red Hat is doing is corrosive to the community. The reason people are looking closely at the GNU GPL version 2 for possibilities of a license violation here is that this document, in spite of some members' institutional and/or personal biases against the FSF and RMS, is the pre-eminent social contract under which our community has operated for twenty years.
The GNU GPL has a spirit and a letter; both are important and it is foolish to denigrate either, when both have proven their utility time and again. (I invite anyone who doesn't think the GNU GPL has a spirit to read competing licenses like the CPL, the EPL, the MPL, or the APSL, and then reconsider.)
You just said that you don't agree with this decision. Why, then, write an article which gives Red Hat cover for it? Why offer apparently unsourced speculation as to the views of Red Hat's attorneys when you can speak with perfect authority about your own view?
Make your stand, LWN!
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