Re: module license taints kernel.

On Nov 30, 2:39 am, Lajos Parkatti ISES <lpark...@xxxxxxxxxxxxx>
wrote:

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.

Right, and the issue will be did you or did you not comply with the
GPL. This is a contract issue, not a copyright issue.

Again, you cannot use a license to turn actions that do not violate
copyright (such as failing to distribute source code) into copyright
violations. Copyright violations can only be created by statute.
License violations are not copyright violations (unless they exceed
the scope of the license according to copyright law).

If you don't like the GPL, don't distribute GPL-ware.

And if you don't like EULAs, don't buy software that has them. And if
you don't like your government, move. Don't fix things. Don't exercise
your rights.

It's not that I don't like the GPL. I don't like misunderstandings of
the GPL. I also don't like people who claim to be friends of free
software who actually argue for huge expansions of rights under
copyright.

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)

Yes, that's one issue. Note that by "creative expression of the
kernel" you mean beyond what is reasonably necessary to accomplish the
module's function.

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

It cannot unless the module itself was a derivative work. The
"combination" cannot ever create a new work, so if there was no
derivative work before combination, there cannot be one after. (This
is assuming the combination function is purely functional, which it
should be in all cases I can think of.)

* 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)

Right, but this means "copying or distributing" as defined in
copyright law, not as defined in the GPL or in the common sense
meaning of those terms. And, again, this would only mean you had to
provide the source code to the kernel itself, not to your module
because they're not derivative works. (Assuming they're not.)

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

Right, there are several lines here that are very tricky to draw. The
hardest ones is whether large literal takings can be justified as
purely functional.

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).

True, but so long as you link it in the minimal way reasonably needed
to produce the functional result, there's no issue. I think you'll
find courts will treat this much the same as coloring in a coloring
book.

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.

Section 6 explains copyright law, and does a pretty good job of it.
All GPL-like licenses operate by giving every lawful recipient of the
work a license from each individual author. None of them do or can
support re-licensing. The GPL is not irrelevant because it has no
limitations on who can take advantage of it.

You don't have to obey the GPL to have the GPL available to you. You
just have to not violate it.

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.

That would make a lot of things tainted, including my WRT56GS running
OpenWRT since it has a proprietary Broadcom driver. Heck, that would
make an OpenWRT CD tainted.

If you want to call any distribution that includes non-GPL'd elements
"tainted", then fine. But remember, we started out with the module not
being GPL'd anyway. So to argue that the result is not GPL'd should
just get a big "duh". Our whole starting goal was to restrict
distribution. (At least of the source code.)

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!

If the person downloading the program is doing the copying, then the
GPL cannot possibly apply to them at that point. They may not have
even had a chance to read it, much less agree to it. They may not even
know the work is GPL'd.

If the GPL applied that way, every site that offered GPL'd works for
electronic distirbution would need some kind of GPL click-through or
notification/agreement.

Do you violate copyright when you go to a web page that has a
copyrighted image?

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.

Google should provide it quickly, it's a commonly-cited and commonly-
read 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.

That was largely because their DMCA arguments were untested at the
time. There were other issues in that same case that Lexmark felt were
strong, I don't think Lexmark expected their direct copyright
arguments to work.

This was a kind of extreme case though. An entire work was taken,
literally byte for byte, and justified on functional grounds.

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.

This is a perfectly fine thing for an advocate of extreme rights for
authors and closed-source software to say. It's a horrible thing for
anyone who even pretends to care about free software to say.

If you don't like the rights the creator chooses to give you, do
without it. The law should let the creator set whatever terms he wants
and you should feel honor-bound to obey them.

Is that really what you believe?

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 are. Really.

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.

But they don't. That's what this whole thread is about.

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.

They are if the free software movement argues for expansions to
author's copyright rights. For example, the free software movement
could get a law passed that declared that linking created a derivative
work. That would reduce *everyone's* rights to all copyrighted works.
That threatens my freedoms.

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.

No, that's not what I'm saying. I'm saying they should argue for more
freedoms, not fewer.

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

Now the FSF is going to tell me what concepts I can think about and
talk about? The FSF's argument about this is absurd and I reject it
utterly. (Others contractual or legal obligations to your *are*
property. That's why your bank can sell your mortgage to someone
else.)

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.

Right, but all that I've been talking about is the scope of copyright
law. The GPL's intent can't matter to its scope.

If you want to argue that I have to comply with the GPL to do X, then
you must argue that X is not fair use. So, if I have to comply with
the GPL to compile a GPL'd library and link it to my own program, then
that cannot be part of fair use.

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).

Right. But I don't think I've said word one about what it takes to
comply with the GPL. At least, no in this thread.

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).

It can't be. You can't violate copyright law unless you exceed the
scope of the license under copyright law. Creating and distributing
derivative works is within the scope of the license.

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

Do you see the implications of that?

DS
.

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