Re: freed_symbols [Re: People, not GPL [was: Re: Driver Model]]

Larry McVoy
2003-10-06T01:22:56Z

On Sun, Oct 05, 2003 at 09:34:40PM +0100, David Woodhouse wrote:
> The GPL says you may use the kernel _itself_ but only with certain
> restrictions.
>
> My claim is that the GPL forbids you from loading a non-GPL'd module.
> Not that if you do so, the non-GPL'd module becomes a derived work, but
> that in doing do you are violating the licence under which you received
> the _kernel_ and hence you must immediately cease using the _kernel_.

Your claim is not, as far as I know, supported by the law or the GPL
itself.

GPL v2 section 2:
"These requirements apply to the modified work as a whole.
If identifiable sections of that work are not derived from the
Program, and can be reasonably considered independent and separate
works in themselves, then this License, and its terms, do not apply"

That leaves the question of what "can be reasonably considered independent
and separate works". I've both heard about other companies researching
this and I've done it myself. The lawyers came to the same conclusion,
independently. In software, what constitutes an independent work is
something which can be pulled out and have another implementation dropped
in and the rest of the system can't tell the difference.

A very obvious boundary is user vs kernel, nobody here thinks that because
some application runs on a GPLed kernel that application is GPLed.
Some people here may _pretend_ they think that so that they can argue
that Linus made an "exception" for user land applications but that's
just self serving posturing and I'm sure those people know that (just
as I'm sure there will be 50 flaming replies saying that is not at all
what they think. Politicians are the same everywhere).

Another boundary is a tarball. If it weren't for the above clause of
the GPL then anything combined in a tarball with a GPLed work would be
considered GPLed. Even RMS knew that wouldn't fly.

A less obvious boundary, and the one that got me into this, is the storage
of a GPLed source file in a source management system. Does that mean that
the metadata used to store that file is GPLed? At one point I was worried
about this (why? Damn good question, in retrospect it is a "don't care",
I didn't create the metadata so I don't own it anyway so why do I care if
it is GPLed or not? Whatever, at one point I cared). I spent more than
a lot of you make in a year in legal fees looking into it and that's where
I learned about boundaries. The law has pretty clear ideas about boundaries
and it doesn't matter what you think or I think or the GPL thinks, the
boundaries are there and the GPL can't cross them. The conclusion of the
lawyers was that no, putting a GPLed file into an SCM system in no way
makes the SCM metadata GPLed. BTW, I asked RMS about this and he of course
refused to accept that, his position is that the metadata would be GPLed,
nice to see he is consistent :)

A much more obvious example than the SCM one is a device driver or a module.
That's so cut and dried it isn't even open to debate in the eyes of the
law. It's a hard and fast boundary, the GPL can't cross it no matter what
people think or want (on either side).

That's why I think that your claim is not supported, by the GPL or
(far more importantly) the law. While I'm no lawyer I'm perhaps more
qualified than some people on this list since I've actually spent a pile
of money researching this. I'm sure that someone with more money could
buy^H^H^Hpay some lawyers try and make an opposing view stick but I'm
equally sure that those of you without money don't have an iceballs'
chance in hell of making an opposing view stick. Talk is cheap, legal
decisions are expensive.

Once again, please note that I don't make money off the kernel or any other
GPLed product (we ship diff & patch with BK but we also provide source for
all our changes, they aren't substantial nor are they money makers). So I
have no vested interest in which way this works out. I'm simply passing on
what I've learned, I'm more or less one of you who has actually spent a lot
of money getting legal opinions on the topic.
--
---
Larry McVoy lm at bitmover.com http://www.bitmover.com/lm