Subject: Re: Re: Question Regarding GPL
From: Ben Tilly <btilly@gmail.com>
Date: Fri, 20 Jan 2006 13:53:36 -0800

 Fri, 20 Jan 2006 13:53:36 -0800
Linus is not a lawyer, but he is a copyright holder and is
well-regarded by the other copyright holders who matter for this.  If
he says, "The following is allowed" what that means is, "I won't sue
for the following, and anyone who does will be in my bad books."  Even
if his statements have no legal force, that significantly reduces the
lawsuit risk.

However my understanding as a non-lawyer is that his statements do
have legal weight.  If a judge finds that the GPL is unclear on this
issue, the precedent of Linus' widely quoted and followed guideline is
likely to affect a judge's decision.

And finally, and very importantly, the *reason* that Linus gave his
opinion is worth looking at.  Linus' position is not "I think this is
a grand thing to do."  Linus' position is that, "my understanding of
the GPL says that this is OK."  If his understanding is correct, then
it doesn't really matter what his legal standing is.

My understanding of his opinion is that in the case of a loadable
module, there is no derived work until one is created by the end-user
loading the module (which is within that user's rights to do), and
after this derived work is created the GPL is not triggered because
the user never does anything that touches on copyright law.  That is
because the derived work (ie the running kernel) is not copied,
distributed, etc.

My non-laywerly opinion is that Linus is mostly, but not completely,
right.  The case where Linus is wrong comes up with virtual machines -
if the running kernel is in a virtual machine which has a snapshot
saved, that snapshot may be copied, given to someone else, etc.  Which
would trigger copyright law and therefore the GPL.  However this case
is fairly rare.  The overwhelming majority of people are not running
their copies of Linux in a virtual machine.  And the overwhelming
majority of times that people do use virtual machines, they don't do
anything with them that would infringe on copyright law.

However even in those boundary cases, it isn't the author of the
loadable kernel module who runs afoul of the GPL, it is the end user
who loaded the module into a kernel and then redistributed the derived
work.  So even in that case, it is OK to write a loadable kernel
module that is proprietary.

IANAL, this is not legal advice, etc.  But if it is wrong then I'd
hope that a real lawyer on the list would correct me.

Cheers,
Ben

On 1/20/06, Mark Kandianis <linux-man@verizon.net> wrote:
>
>
> Note: forwarded message attached.
>
> ---------- Forwarded message ----------
> From: Mark Kandianis <linux-man@verizon.net>
> To: Russell Nelson <nelson@crynwr.com>
> Date: Fri, 20 Jan 2006 09:00:10 -0800 (PST)
> Subject: Re: Question Regarding GPL
> But Linus isn't a lawyer and if it can't be done, how is IBMs db2 doing it?
>
> Ah the questions.............
>
> Mark.......www.x-oz.com
>
> Russell Nelson <nelson@crynwr.com> wrote:
> Singh, Akshay writes:
> > > I have a question regarding GPL licensing for Loadable Kernel Module.
>