RE: Linux GPL and binary module exception clause?

David Schwartz
2003-12-05T06:34:52Z

> Or maybe you feel like making a Harry Potter knockoff. Go ahead
> and write whatever you want in the privacy of your own home. If
> you dare to try distributing such a knock off novel, you will shortly
> find Time-Warner sending a herd of lawyers your direction [2].

Yes, but they will cite the prohibition against *creating* derived works.

> Similarly, nobody cares what kernel modules you feel like making
> and loading in the privacy of your own home.

There's a difference between what you can and can't do and what you can and
can't get away with. You can get away with making a Harry Potter sequel in
the privacy of your own home because nobody would find about it, however
legally, you do not have the right to create the derived work. However, if
you did have the right to create the derived work, you'd automatically have
the right to distribute it to anyone who already owned the original work
from which it was derived.

> > So long as it must be mixed with the original work (and isn't
> > already), it's not clear that it's a derived work as it sits.
> > Again, otherwise any program that used 'malloc' would be a
> > derived work of any implementation of 'malloc'.

> The act of compiling a program and linking that program with a
> library certainly does create a derivitive work of that library.

Right, however, you have the right to create that derivative work.

> Try linking your program with the 30-day evaluation version of
> Intel's Math Kernel Library and distributing the result without
> paying them for a license. Try using Qt in a non-GPL closed
> source product without paying Trolltech. Try using MS Visual
> Studio to create and distribute your own competing compiler.
> Guess how fast you would have herds of lawyers visiting to
> discuss your opinions of what is and is not a derived work?

These cases are much more interesting, except for the MS VC case. In the MS
VC case, there's a EULA that courts are likely to consider part of the sales
contract. As for the others, I think you'd have a very good chance of
winning them. See, for example, ProCD v. Zeidelberg (sp?). In the absence of
a shrink wrap or clickthrough at least, it would seem you only have those
specific rights copyright grants you, and the right to restrict the
distribution of derived works is not one of those rights.

DS