Return-Path: Received: (majordomo@vger.kernel.org) by vger.kernel.org via listexpand id S261185AbUKETou (ORCPT ); Fri, 5 Nov 2004 14:44:50 -0500 Received: (majordomo@vger.kernel.org) by vger.kernel.org id S261172AbUKETm3 (ORCPT ); Fri, 5 Nov 2004 14:42:29 -0500 Received: from alog0368.analogic.com ([208.224.222.144]:19072 "EHLO chaos.analogic.com") by vger.kernel.org with ESMTP id S261188AbUKETjU (ORCPT ); Fri, 5 Nov 2004 14:39:20 -0500 Date: Fri, 5 Nov 2004 14:38:29 -0500 (EST) From: linux-os Reply-To: linux-os@analogic.com To: David Schwartz cc: adam@yggdrasil.com, jp@enix.org, Linux kernel Subject: RE: Possible GPL infringement in Broadcom-based routers In-Reply-To: Message-ID: References: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII; format=flowed Sender: linux-kernel-owner@vger.kernel.org X-Mailing-List: linux-kernel@vger.kernel.org Content-Length: 3103 Lines: 71 On Fri, 5 Nov 2004, David Schwartz wrote: > >> I think you're missing the idea that that such drivers are >> _contributory_ infringement to the direct infringement that occurs when >> the user loads the module. > > Except that loading the module is not infringement. The GPL does not > restrict use of GPL'd code in any way. > >> In other words, even for a driver that has >> not a byte of code derived from the kernel, if all its uses involve it >> being loaded into a GPL'ed kernel to form an infringing derivative >> work in RAM by the user committing direct copyright infringement against >> numerous GPL'ed kernel components, then it fails the test of having >> a substantial non-infringing use, as established in the Betamax decision, >> and distributing it is contributory infringement of those GPL'ed >> components of the kernel. > > In order for there to be an "infringing derivative work", some clause of > the GPL would have to be infringed. There exists no clause in the GPL that > restricts the *creation* of derivative works that are not distributed. > > If your argument were correct, then no non-GPL'd software could *ever* be > distributed for Linux. You see, loading that software would create an > "infringing derivative work" in the memory of the computer running it, > combining the Linux kernel with the software. > > DS > As I understand it, anything that executes in the user-mode environment provided by the kernel, using the kernel-provided API(s), either through a runtime library or direct, using the kernel interface(s), is not a derivative work of the kernel. Anything that runs inside the kernel is a derivative work. There used to be a "gray area" which has now been obliterated with the new module-loading software. There is now no question about the derivative works of a module because a module is now data used by the kernel's built-in loading mechanism. It cannot anymore be confused with a "program". So, if the Broadcom router uses a linux kernel with its built-in network routing capability, that's fair use. If it has a user-interface program for configuring it, that user-interface program can be considered proprietary and its code can be private intellectual property. If the kernel is unmodified, its source doesn't have to be provided with the box. If there are special modules or special modifications, then these have to be made available if requested by any individual. The company can charge normal distribution fees for this software source-code. In the meantime, you can do anything you want with any portion of linux as long as you do it in the privacy of your own bedroom ;^;) Cheers, Dick Johnson Penguin : Linux version 2.6.9 on an i686 machine (5537.79 BogoMips). Notice : All mail here is now cached for review by John Ashcroft. 98.36% of all statistics are fiction. - To unsubscribe from this list: send the line "unsubscribe linux-kernel" in the body of a message to majordomo@vger.kernel.org More majordomo info at http://vger.kernel.org/majordomo-info.html Please read the FAQ at http://www.tux.org/lkml/