Re: Linux GPL and binary module exception clause?

Shawn Willden
2003-12-05T21:16:39Z

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On Friday 05 December 2003 01:14 pm, Linus Torvalds wrote:
> On Fri, 5 Dec 2003, David Schwartz wrote:
> > Please show me the law
> > that permits a copyright holder to restrict the distribution of
> > derived works.
>
> The "show me the law" is USC 17. It's called "US Copyright Law". As a
> copyright holder in the Linux kernel, I _do_ have the right to restrict
> the distribution of derived works. That's what copyright law is all
> about.

Actually, based on my understanding of Title 17 and the GPL (both of which
I just re-read), David *almost* has a point.

1. As David implies, Title 17 does not grant the copyright holder the
right to restrict distribution of derived works. Section 106[1] describes
the exclusive rights granted to copyright holders, and it only says that
they have exclusive rights to *prepare* derived works. So you cannot
create a derived work without permission from the copyright holder, but
once you have obtained permission to create it, you can distribute the
result. Maybe.

2. The copyright holder can grant permission to create derived works to
whomever (s)he likes, under whatever terms (s)he likes (modulo other
laws). So, the copyright holder can attach strings to the permission.
For example, the copyright holder could specify that you are allowed to
create a derived work, but only on the condition that you do not
distribute it.

3. The GPL understands points 1 and 2, which is why section 2 of the GPL
states:

You may modify your copy or copies of the Program or any
portion of it, thus forming a work based on the Program,
and copy and distribute such modifications or work under
the terms of Section 1 above, provided that you also meet
all of these conditions:

It then lists three conditions, the most important of which is the second,
which states that if the derived work is distributed, it must be
distributed under the terms of the GPL.

IANAL, but the language in Title 17 and the GPL seems pretty clear. If
someone creates a derived work and distributes it under any terms other
than the GPL, they have violated the agreement which gave them permission
to create the derived work, and thereby infringed on the copyright
holder's exclusive rights.

So, yeah, you *do* have the right to restrict distribution of derived
works, via a thunk in the GPL.

Oh, IANAL.

Shawn.

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