Date: Thu, 14 Dec 2006 08:52:15 -0800 (PST)
From: Linus Torvalds <torvalds@osdl.org>
To: David Woodhouse <dwmw2@infradead.org>
cc: Greg KH <gregkh@suse.de>, Jonathan Corbet <corbet@lwn.net>,
       Andrew Morton <akpm@osdl.org>, Martin Bligh <mbligh@mbligh.org>,
       "Michael K. Edwards" <medwards.linux@gmail.com>,
       linux-kernel@vger.kernel.org
Subject: Re: GPL only modules [was Re: [GIT PATCH] more Driver core patches
 for 2.6.19]
In-Reply-To: <1166084480.5253.849.camel@pmac.infradead.org>
Message-ID: <Pine.LNX.4.64.0612140838410.5718@woody.osdl.org>
References: <20061214003246.GA12162@suse.de> <22299.1166057009@lwn.net> 
 <20061214005532.GA12790@suse.de>  <Pine.LNX.4.64.0612131954530.5718@woody.osdl.org>
 <1166084480.5253.849.camel@pmac.infradead.org>
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On Thu, 14 Dec 2006, David Woodhouse wrote:
> 
> But I would ask that they honour the licence on the code I release, and
> perhaps more importantly on the code I import from other GPL sources.

This is a total non-argument, and it doesn't get any betetr by being 
mindlessly repeated over and over and over again.

The license on the code you released talked about "derived works".

Not "everything I want to".

If a module owner can argue successfully in a court of law that a binary 
driver isn't a derived work, then the GPL simply DOES NOT COVER IT!

In other words, people CAN "honor the license" and still not be required 
to put their code under the GPL.

And no, including one header file in order to compile against something 
does not automatically make something a "derived work". It may, or it may 
not. It really isn't up to you to decide whether it does (and notice how 
I'm not saying that it's up to _me_ either!).

For example, all the same people who clamor for free software get 
absolutely RABID about "fair use". Guess what "fair use" actually MEANS? 

Think about it for a moment. It expressly _limits_ the right of copyright 
authors to claim "derived work". So if you argue that anything that ever 
includes your header file (but none of your code) and compiles against it 
is a "derived work", then you are basically very close to arguing that 
"fair use" does not exist.

Do you really want to argue that "everything that has touched anything 
copyrighted AT ALL is a derived work"? Do you feel lucky, punk?

THAT is why I think this discussion is so hypocritical. Either you accept 
that "fair use" and copyrights aren't black-and-white, or you don't.

If you think this is a black-and-white "copyright owners have all the 
rights", then you're standing with the RIAA's and the MPAA's of the world.

Me, personally, I think the RIAA and the MPAA is a shithouse. They are 
immoral. But guess what? They are immoral exactly _because_ they think 
that they automatically own ALL the rights, just because they own the 
copyright.

That is what it boils down to: copyright doesn't really give you "absolute 
power". This is why I have been _consistently_ arguing that we're not 
about "black and white" or "good against evil". It simply isn't that 
simple.

I don't like binary modules. I refuse to support them, and if it turns out 
that the module was written using Linux code, and just for Linux, I htink 
that's a _clear_ copyright violation, and that binary module is obviously 
a license violation.

But if the module was written for other systems, and just ported to Linux, 
and not using our code, then it's very much debatable whether it's 
actually a "derived work". Interfaces don't make "derived works" per se. 

Now, is it something you could sue people over? Sure. I actually do 
believe that it's very possible that a judge _would_ consider such a 
module a derived work, and you can sue people. It probably depends on 
circumstances too. 

But don't you see the problem with a black-and-white technical measure?

Don't you see the problem with the DMCA and the DVD encryption? 

Those kinds of things REMOVE the "reasonable thought" from the equation, 
and turn a gradual process into a sharp "right or wrong" situation. AND 
THAT IS WRONG. We simply do not LIVE in a world that is black and white.

So if you think somebody violates your copyright, send them a C&D letter, 
and eventually take them to court. It's been done. Companies that mis-used 
the GPL have actually been sued, and THEY HAVE LOST. That's a GOOD thing. 
I'm not arguing against that at all. What I'm arguing against is the 
"blind belief" that you or I have the right to tell people what to do, 
just because we own copyrights.

It's not a blind belief that I'm willing to subscribe to. Exactly because 
I have _seen_ what that blind belief results in - crap like the DMCA and 
the RIAA lawsuits.

			Linus

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