Re: module license taints kernel.

David Schwartz <davids@xxxxxxxxxxxxx> writes:

No. Putting a DVD of the Lion King and a DVD of The Phantom Menace in
a box is not copying. Shipping that box to a friend is not
distributing.

In any event, the GPL grants you the right to copy and distribute the
original works. For copyright purposes, the result of linking is the
original works.

It grants you those rights, given that you obey the GPL. Not otherwise.

These requirements apply to the modified work as a whole. If
identifiable sections of that work are not derived from the Program,
and can be reasonably considered independent and separate works in
themselves, then this License, and its terms, do not apply to those
sections when you distribute them as separate works. But when you
distribute the same sections as part of a whole which is a work
based on the Program, the distribution of the whole must be on the
terms of this License, whose permissions for other licensees extend
to the entire whole, and thus to each and every part regardless of
who wrote it.

When you distribute the sections you wrote yourself as part of a whole
which is a work based on the program the distribution of the whole
must be on the terms of the GPL - and wouldn't the kernel combined
with your module clearly be such such a whole?

You may distribute your non-derived work as you please, but you may
not distribute the GPL:ed program together whith it, if they form a
"whole", i.e. if they _combined_ are a derivative work. In the
aggregate you surely use creative expression from the original work.

Mere aggregation on a distribution medium is not covered, but I have a
hard time finding putting your module in /lib/modules/* being mere
aggregation on a distribution medium. You seem to argue that even the
running kernel is a "mere aggregation" of independent works. That
sounds crazy.

And if one of the works is GPLed, copying and distributing it is
on its terms.

Right, except no copying or distributing is needed. I can download 100
copies of the Linux kernel from kernel.org, and I can put them on CD
and give them to 100 of my friends without either copying or
distributing the kernel, legally speaking.

Maybe. But then that kernel _is_ tainted. It cannot be distributed by
folks downstream either.

And I think you _are_ making copies already by downloading the program
from kernel.org (at least that is the case legally where I live).
You could have somebody else download those copies, but that should be
an independent entity.

This is a case where Static Controls copied and distributed an entire
piece of software made by Lexmark. Lexmark sued them for DMCA and
other copyright violations. The court held that because Static
Controls took only what it needed to make its toner cartridges work
with Lexmark printers, there was no copyright violation.

I am not familiar with your local legislation, so studying the case
would be quite much work. And local case law isn't very important, as
we talk about an international product. I think however, that handling
copies of a GPL product in a way that obviously isn't meant to be
allowed by the license, is something that would require lawyers in every
legislation where the product is going to be distr^H^H^H^H^sold. It
may also give you more badwill than you want to have.

You can take what you need from the kernel to make your module work
with it. Copyright does not cover what you need to make something
work. Only patent does that. Copyright covers one choice out of
millions of equally good ones.

But the intent of the license may influence whether you and your
customers are allowed to do anything that requires permission from the
copyright holders. At least over here.

--
Lajos Parkatti
.

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