Message-ID: <4922F596.1010805@shaw.ca>
Date: Tue, 18 Nov 2008 11:04:22 -0600
From: Robert Hancock <hancockr@shaw.ca>
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To: =?ISO-8859-1?Q?Fredrik_Markstr=F6m?= 
	<fredrik.markstrom@avalonenterprise.com>
CC: linux-kernel@vger.kernel.org
Subject: Re: Developing non-commercial drivers ?
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Fredrik Markstr?m wrote:
> Thanks for the prompt respons.
> 
> I do agree that it would be better for everyone to release it under
> GPL and I have already expressed that to our customer.
> 
> At this point I feel that we have two possibilities, help our customer
> violate GPL or say no to the project. I'd prefer a third option where
> I could tell the customer that we can setup the project in a certain
> way (some "cleanroom" setup ?) to ensure that the results can not be
> considered derived work.

The problem is that if it's coded specifically for Linux it's pretty 
much inherently a derived work. Things like the NVIDIA binary graphics 
driver, the old Atheros madwifi HAL stuff, etc. are on a little more 
solid ground as their binary part is theoretically OS-independent and 
there's an open-source shim layer to interface to the kernel, but some 
would say even they are taking some legal risk.

> 
> Is your short answer also the definite answer considering this ?

I don't think anyone on this list is a lawyer, and since this is a legal 
question, legal advice would be what I would suggest you and/or this 
company should have before considering going down the non-GPL driver 
road. The risk is mainly that a kernel contributor (or one of their 
employers like IBM, Red Hat, etc.) could sue them for violating the GPL.

> 
> /Fredrik
> 
> 
> 
> 
> 2008/11/18 Robert Hancock <hancockr@shaw.ca>:
>> Fredrik Markstr?m wrote:
>>> Linus, others...
>>>
>>> I'm working for as a consultant for a large hardware company porting
>>> Linux to their new cpu-architecture and everything is pretty much
>>> up and running. Now they want us to develop a closed-source (to
>>> protect their IP) ethernet driver for their proprietary Ethernet MAC.
>>>
>>> My question is:    Is there a fair way to do this and still comply to
>>> the intent and spirit of the Linux licensing ?
>>>
>>> If yes, how ?
>> In a word, I would say: no.
>>
>> When developing a non-GPL kernel driver, one finds themselves on very shaky
>> legal ground. Unless one is 100% sure their code is not legally considered a
>> derived work from the kernel, it's likely a GPL violation.
>>
>> One could point out the pile of other Ethernet drivers in the kernel from
>> the likes of Intel, Broadcom, etc. and ask why those companies did not feel
>> the need to "protect their IP" in this manner.. as well as the significant
>> advantages of having their driver in the mainline kernel, and the horrible
>> disadvantages of trying to manage closed-source drivers..
>>
> 
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