Re: [PATCH] USB: mark USB drivers as being GPL only

Daniel Hazelton
2008-02-08T19:37:32Z

On Friday 08 February 2008 14:08:21 David Newall wrote:
> I explained something poorly:
> > Now, Alan has made a big issue over numerous legal opinions he has
> > received, but he's been completely coy in the details.
>
> The point I wanted to make is that a few people have said that lawyers
> say that kernel modules are derivative, but I only remember Alan saying
> that he had actually spoken with the lawyers. Therefore I infer that
> this somewhat widely held opinion originates from him. My point was to
> those people who have been taking him at his word, and was to point out
> that there are more reliable and transparent sources. Don't take his
> word on it. Take the words of real experts in the law, because instead
> of a mere four word conclusion, they explain everything.

The one technically inclined lawyer that I asked about this said that the
Lexmark decision meant that code using an API did not mean the work was a
derivative of the API. However, in the case of the Linux Kernel, the code is
meant to function inside a much larger framework and the API available to
modules includes large amounts of "boilerplate code" buried behind handy
chunks of code like "list_for_each".

The problem, he said, was that, in the US, such code is included in the module
in a mechanical and wholly automated process. Which means that the module
doesn't automatically inherit the GPL license. But, he cautioned me, this
does not mean that a court couldn't (and/or wouldn't) rule that a module
written specifically for Linux is a derivative of the kernel.

He also cautioned that, although the Bern Convention broadly controlled
international copyright laws, specific countries do seem to have laws that
cover the "kernel module" situation much better than the US laws and that
those laws do apparently make a module a derivative of the kernel.

His overall statement on it was that, in his opinion, whether a given module
is a derivative or not would depend on the amount of "original" work
contained in it compared to the number of places where linux specific code is
used. He also stated that, while disagreeing with the idea that parts of an
API could be "so deeply embedded that using them creates a derivative work",
it would be a good idea to always pay attention to the beliefs of the
developers of the code, because it is their opinion that will start the legal
problems.

In other words "EXPORT_SYMBOL_GPL" isn't his idea of "a good legal idea", but
people ignoring this and doing things that circumvent this will, eventually,
have problems with the people who hold the copyright on the code. (In
addition, he stated that circumventing the "EXPORT_SYMBOL_GPL" bit might also
be in violation of the DMCA, but he isn't sure if a court would see it in the
same light as someone cracking the CSS key on a DVD expressly for the purpose
of creating pirated copies)

DRH

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