Re: module license taints kernel.

David Schwartz <davids@xxxxxxxxxxxxx> writes:

On Nov 26, 11:24 am, Lajos Parkatti ISES <lpark...@xxxxxxxxxxxxx>
wrote:

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.

1) You are confusing *who* needs to comply with the GPL. If you
distribute and copy a GPL'd work and I get a copy, that doesn't mean
that *I* need to comply with the GPL, it only means you do.

Correct. But if some entity wants to distribute the GPL:ed kernel,
they get the right to do so by obeying the license. You can perhaps
trick your way through this by using third parties, if you are careful.

2) You can't use a license to create copyright violation claims based
on violation of that license. In other words, you can't use a license
to make failure to release source code a copyright violation.

Not directly. But you can sue somebody for the act of copying or
distributing your work without permission. Then the one sued has to
show that they indeed had permission. At least this is how the GPL is
intended to work. If you don't like the GPL, don't distribute GPL-ware.

You may distribute your non-derived work as you please, but you may
not distribute the GPL:ed program together with 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.

Clearly they are not if they are combined by a linker. A linker can't
create a new work, so it can't create a derivative work where there
wasn't one before.

So there are at least three things to worry about:

* does the module itself use enough of the creative expression of the
kernel and does it use it in such a way that the result is a
derivative work (this is not the case where the module is only
somewhat modified to work with linux, otherwise it might be)

* does the combination of the module and the kernel, and anything else
involved, constitute a derivative work

* are you copying or distributing the kernel, in which case you are
bound by the GPL even when your work is not a derivative work in
the copyright sense (this is important if the GPL restricts acts
that are not covered by copyright law)

I am not going to argue where to draw the lines, that is in most cases
up to the courts.

You seem to argue that even the running kernel is a "mere
aggregation" of independent works. That sounds crazy.

That's exactly what I'm arguing.

OK, I leave it to the courts. There is of course also creative
processes all over the place (somebody decides to link things in a
certain way and things are combined in clever ways).

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.

Nonsense. You have serious misunderstandings about how the GPL works.
Please read section 6 *very* carefully. People who redistribute
modified or unmodified GPL and BSD licensed works *NEVER* relicense
those works. The licenses always flow from the original author(s) to
the final recipients.

Section 6 is irrelevant. You argue that you do not have to obey the GPL
because you are not going to copy or redistribute the kernel. You do
this by using a third party to do the copying.

The poor folks downstream, who _do_ want to distribute the same thing
_are_ bound by the GPL. If you had to resort to third parties to
distribute your module alongside the kernel, so must they. I call such
a kernel tainted. They do have the licence to distribute the kernel
without your module, but that was not the thing under discussion.

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).

Nope. One copy flows over the network, is converted to the copy on
your disk, and that's that. One copy is all there is. The person who
sends it to you may arguably be copying (one copy on the disk, one on
the network, neither goes away since the recipient can make the
network copy persistent).

So it is the person who put the kernel on ftp that is doing the
copying, not the person typing "get"? Quite weird way to look at it!

You don't need to agree to the GPL to receive and use a GPL'd work.
The GPL is not a shrink-wrap agreement or EULA.

Copying your copy of the kernel to a CD alongside your module is also
copying (even if you delete the original), at least over here. As I
said earlier, you could perhaps make it by using third parties to do
the copying, but in some jurisdictions the court may look at what the
intention was and who the principal agent was, not only at how it was
done technically. So you need to be careful and know every legislation
involved.

This is a case where Static Controls copied and distributed an entire
piece of software made by Lexmark. Lexmark sued them for DMCA and

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

The points I'm making are not minor legal technicalities, they are
fundamental things about how copyright works.

Yes, your points are. But I have tried to read some law cases from the
USA and it is not easy. You do not even provide a link to the case.
If the reasoning really is obvious and general enough to make your
point, then it certainly is interesting. I would still need a link to
the relevant sections of the documents (and the documents themselves).
Also, as both parties did go to court, the lawyers of Lexmark thought
they could win. That probably means they still could win a similar case
in some other legislation.

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.

As for badwill, quite the opposite, the badwill results from people
who try to restrict what other people can do with what is theirs,
not from people who exercise the freedoms they have.

With what is theirs because they were given it! Under certain obligations!
So FSF gives me Emacs, and then I cry wolf because they are trying to
restrict my "freedom" to sell a closed source modification. I think that
is ridiculous. The FSF does not try to hide in small print on what terms
you get their software. (Linux is not made by FSF, but I think they can
represent what this discussion mainly is about)

If you do not like the GPL and the spirit of it, just don't use such
software, at least not in your own products. There are alternatives,
BSD should fit if you want more freedom than the GPL gives you.

Wouldn't the free software movement be a bunch of crazy hypocrites if
they defended their IP like the RIAA does?

Maybe. But they are _not_ defending their "IP"¹ like the RIAA does.
They use quite ordinary copyright law and a license that is more
liberal and clear than the license of any (other) commercial product I
have seen. They ask companies that break the license to cease doing
so and might even go to court if that is needed. Your freedoms are not
threatened by the existence of the FSF or the free software movement
in general.

You seem to suggest that they just should turn the other cheek and
abandon anything that has been their motivations. Or that they should
act as if choosing the GPL was a mistake and the intention was BSD.

[1] The word is on FSF's list of words to avoid, so I wouldn't use it here.

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.

I don't see how the intent of the license can affect copyright law.

It doesn't. But if you need permission from the copyright owners
under copyright law, then you get that permission through the GPL.
When deciding whether or not you have fulfilled your obligations under
the GPL, the court will also look at the intent of that license, as
long as that intent is obvious from careful reading (the licensee
cannot be supposed to understand an intent that isn't).

If it is clear that you are distributing the software in a way that
was not intended to be allowed, then the court may decide that it
indeed was not allowed, and you have distributed software without
permission, which is a case for copyright law (there may also be
cases regarded as breaching a contract, but that shouldn't be the
obvious ones).

I'm only talking about the *scope* of the license, and that is set by
law, not by the license itself.

--
Lajos Parkatti
.

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