Also, despite the general acceptance in the kernel community that they're right, there's absolutely no certainty that they'd win. There's no legal precedent to suggest that's the case. And such a ruling would contradict, at least in part, recent ruling that programming to an API is *not* derivation. Similarly, for GPL libraries like readline. As you say, a broad ruling that "module linking means derivation", would mean that some code would be a derivative of code it predates.
I'm not saying they would lose (results would probably depend strongly on jurisdiction), but the risk of losing and the consequences of losing would make it unlikely that anyone will ever actually go to court. The doubt acts as a strong to comply. The kernel community may have legal opinion that their case has merits, but you can bet that NVIDIA has legal opinion supporting them too.
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