Subject: RE: Re: Question Regarding GPL
From: "Lawrence Rosen" <lrosen@rosenlaw.com>
Date: Fri, 20 Jan 2006 16:58:21 -0800

 Fri, 20 Jan 2006 16:58:21 -0800
Previous emails wrote:
> > It is obvious that a loadable module can be derivative of the Linux 
> > kernel.  Just start with a piece of the Linux kernel and 
> make it into 
> > a loadable module.  The question is whether it is possible for a 
> > loadable module to not be derivative of the Linux kernel.
> 
> Yes, very succinctly put.
> 
> > Linus's stated opinion is that it is possible.  
<snip>

I'm turning this back into a question more challenging for license-discuss:

This entire issue of linking independent modules to Linux has bothered us
all for way too long, and from what I read GPLv3 won't solve it--at least
not yet. The GPL is ambiguous about such combinations, and regular
pronouncements about it from the mountain top don't really help us achieve a
common understanding among all the licensors and licensees in the world. 

The language of OSL 3.0  1(a) and 1(b) attempts to solve the problem by
separately granting a license to copy the Original Work and a license to
create Derivative Works. These are the specific things you are authorized to
do: 

   1(a): to reproduce the Original Work in copies, either alone or as part
         of a collective work;

   1(b): to translate, adapt, alter, transform, modify, or arrange the 
         Original Work, thereby creating derivative works ("Derivative
Works")
         based upon the Original Work;

So if Linux were licensed under OSL 3.0, linking a device driver to it would
create either a collective work containing a copy of Linux and a copy of the
driver or, if the driver was created by translating, adapting, altering,
transforming, modifying, or arranging Linux, a derivative work of Linux. If
the latter, source code would have to be disclosed. (See  1(c).)

Note that with such language, you'd never get into silly legal problems with
pre-existing, independently-written copyrighted modules being declared
derivative works of Linux simply because the works are linked together.

Does anyone besides me think that similar language in GPLv3 would be
helpful?

/Larry

Lawrence Rosen
Rosenlaw & Einschlag, technology law offices (www.rosenlaw.com)
Stanford University School of Law, Lecturer in Law
3001 King Ranch Road, Ukiah, CA 95482
707-485-1242  *  fax: 707-485-1243
Author of "Open Source Licensing: Software Freedom and 
   Intellectual Property Law" (Prentice Hall 2004) 
   [Available also at www.rosenlaw.com/oslbook.htm]
 
> -----Original Message-----
> From: Rick Moen [mailto:rick@linuxmafia.com] 
> Sent: Friday, January 20, 2006 3:59 PM
> To: license-discuss@opensource.org
> Subject: Re: Re: Question Regarding GPL
> 
> Quoting Ben Tilly (btilly@gmail.com):
> 
> > I'm not sure whether you're agreeing or disagreeing with me.
> 
> Welcome to the law.  ;->
> 
> > It is obvious that a loadable module can be derivative of the Linux 
> > kernel.  Just start with a piece of the Linux kernel and 
> make it into 
> > a loadable module.  The question is whether it is possible for a 
> > loadable module to not be derivative of the Linux kernel.
> 
> Yes, very succinctly put.
> 
> > Linus's stated opinion is that it is possible.  My admittedly 
> > uninformed opinion is that he is right.
> 
> To my knowledge, his most recent statement was on 2002-10-17, 
> as follows (in part):  
> 
>   The  only  thing that allows for non-GPL modules is 
> copyright law, and
>   in particular the "derived work" issue. A vendor who 
> distributes non-GPL
>   modules is  not  protected by the module interface per se, 
> and should
>   feel very confident that they can show in a court of law 
> that the code
>   is not derived.  [...]
> 
>   The original binary-only modules were for things that were
>   pre-existing works of code, i.e., drivers and filesystems ported
>   from other operating systems, which thus could clearly be argued
>   to not be derived works, and the original limited export table
>   also acted somewhat as a barrier to show a level of distance.
> 
> By "derived work", Torvalds meant "derivative work" as used 
> as a term of art within copyright law.
> 
> My point, in any event, was that the factual question would 
> be resolved by a court not by consulting Torvalds's or anyone 
> else's opinions, but (in USA jurisdictions) by applying the 
> Altai test to the allegedly infringing code.
> 
> 
> > Many people have released drivers that depend on that opinion being
> > correct.
> 
> Note:  Torvalds's opinions on the matter have been known to change
> dramatically, without advance notice.  Compare his 1995-12-17 and
> 2002-10-17 proclamations on LKML, as archived here:  
> "Proprietary Kernel
> Modules" on http://linuxmafia.com/kb/Kernel/
> 
> 
> > What you've said is that the correct test to use is the one 
> described
> > in that decision.  I just read that decision, and I am left no more
> > able to answer the fundamental question than I was before.
> 
> My old landlord and colleague Richard Couture had a saying -- harsh, 
> but relevant:  "Sorry to hear about  your  problem."  ;->  
> The relevant
> test is the one that will be applied.  I'm just telling the truth.
> 
> [Micro Star decision:]
> 
> > I don't see the relevance.  U
> 
> Relevance is that non-literal copying can infringe, and that
> copyright-encumbered content isn't necessarily limited to code.