Re: LinuxTV ported to Windows

[Laurent Pinchart <laurent.pinchart@ideasonboard.com>]

Hi Andreas,

On Wednesday 30 November 2011 20:58:40 Andreas Oberritter wrote:
> On 30.11.2011 20:33, Devin Heitmueller wrote:
> > On Wed, Nov 30, 2011 at 1:02 PM, Andreas Oberritter wrote:
> >>> Am I the only one who thinks this is a legally ambigious grey area?
> >>> Seems like this could be a violation of the GPL as the driver code in
> >>> question links against a proprietary kernel.
> >> 
> >> Devin, please! Are you implying that the windows kernel becomes a
> >> derived work of the driver, or that it's generally impossible to publish
> >> windows drivers under the terms of the GPL?
> > 
> > The simple answer is that "I don't know".  I'm not a lawyer (and as
> > far as I know, neither are you).  Nor have I researched the topic to
> > significant lengths.  That said though, whether it was the intention
> > of either copyright holder it's entirely possible that the two
> > software licenses are simply incompatible.  For example, while both
> > the Apache group and the FSF never really intended to prevent each
> > others' software from being linked against each other, the net effect
> > is still that you cannot redistribute such software together since the
> > Apache license is incompatible with the GPL.
> 
> Neither is Abylay distributing Windows together with this driver, nor is
> this driver a library Windows links against, i.e. Windows is able to run
> with this driver removed.

But the driver can't run with Windows.

The important point to remember when discussing licenses is that the GPL 
license mostly affects distribution of binaries. Distribution of the source 
code isn't an issue in this case, as the code is clearly being redistributed 
under the terms of the license. Binaries, however, are a different story.

The resulting Windows driver binary is linked to GPL-incompatible code (namely 
the Windows kernel). I'm not, as most people here, a lawyer, but this can of 
situation always triggers an alarm in my brain. It might not be allowed by the 
GPL license, hence the comment about a *possible* GPL violation.

The binary might also violate Microsoft terms of use. I haven't studied the 
Windows DDK license, but I wouldn't be surprised if it forbade linking GPL 
code to the Windows kernel one way or the other. I won't be personally upset 
if someone violates the Windows DDK license, but it's worth a warning as well.

> >>> I don't want to start a flame war, but I don't see how this is legal.
> >>> And you could definitely question whether it goes against the
> >>> intentions of the original authors to see their GPL driver code being
> >>> used in non-free operating systems.
> >> 
> >> The GPL doesn't cover such intentions.
> > 
> > This isn't necessarily true.  Anybody who has written a library and
> > released it under the GPL instead of the LGPL has made a conscious
> > decision that the library is only to be used by software that is GPL
> > compatible.  By their actions they have inherently forbidden it's use
> > by non-free software.  You could certainly make the same argument
> > about a driver -- that they authors intent was to ensure that it only
> > be linked against other free software.
> 
> That's something completely different than "being used in non-free
> operating systems" and not necessarily comparable to a driver, which
> implements a well-defined interface.

It doesn't matter much if the interface is well-defined or not. What matters 
is the GPL license on one side, and the related Windows licenses on the other 
side. Distributing a Windows binary driver made of GPL code needs to comply 
with licenses on both sides.

Whether the original author intent was to forbid usage of the code in a 
proprietary operating system isn't really relevant from a legal point of view. 
Sure, it would be nice to take the original author opinion into consideration, 
but there's at best (or at worst, depending on the point of view) only a moral 
need to do so. When Google uses my kernel code in Android, with a proprietary 
(yet open) userspace that in my opinion hurts Linux, I'm not the happiest 
person in the world, but I live with it without complaining (OK, that's not 
completely true, I complain about Android creating a lot of new kernel APIs 
without any cooperation with the Linux community, but that's another story).

> The point I'm trying to make: Someone made a presumably nice open source
> port to a new platform and the first thing you're doing is to play the
> GPL-has-been-violated-card, even though you're admitting that you don't
> know whether any right is being violated or not. Please don't do that.
> It's not very encouraging to someone who just announced free software.

Thanks for pointing this out. I would have reacted similarly to Devin, not to 
discourage Abylay from working on this interesting project, but to warn him 
that there might be legal issues (I think we would all prefer early 
notifications from the community than late notifications from unfriendly 
lawyers :-)). You understanding this as an attack shows that we need to be 
more careful in the way we word our messages on license-related issues.

-- 
Regards,

Laurent Pinchart