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Re: Intellectual Property II

From: Alexander Terekhov
Subject: Re: Intellectual Property II
Date: Tue, 07 Feb 2006 17:52:23 +0100

Alexander Terekhov wrote:
> Moglen: In all good faith, I can't tell you. If the kernel were
> pure GPL in its license terms, the answer...would be: You couldn't
> link proprietary video drivers into it whether dynamically or
> statically, and you couldn't link drivers which were proprietary in
> their license terms.
> </quote>
> I just wonder under what "impure" GPL license terms do you think
> Moglen thinks ("in all good faith") the Linux kernel is developed
> currently (note that the context is kernel drivers which has
> nothing to do with Linus' not-really-an-exception for user space).
> Any thoughts?
> Even if you have any, then how does that play out regarding what
> the FSF is telling to the judge in Iniana...
> "The GNU/Linux operating system is probably the best known example
>  of a computer program that has been developed using the free
>  software model, and is licensed pursuant to the GPL."
>                                              ^^^^^^^

Here's more evidence that notwithstanding what the FSF says to the 
judge in Indiana, the FSF's own director and lead counsel in fact
doesn't really understand the licensing terms relevant to the use 
of Linux.

LWN: A while back, you said something about getting an answer from 
Linus on the Linux kernel license. Since there is a COPYING file 
that makes it clear that the kernel is governed under the GPL, 
where's the uncertainty?

Eben: If the kernel is pure GPL, then I think we would all agree 
that non-GPL, non-free loadable kernel modules represent GPL 
violations. Nonetheless, we all know that there are a large number 
of such modules and their existence is tolerated or even to some 
degree encouraged by the kernel maintainers, and I take that to 
mean that as an indication that there is some exception for those 

The kernel also maintains a technical mechanism, namely the 
GPL-only symbols and tainting structure, which seems to suggest an 
API for the connection of non-GPL'ed code to the kernel, which also 
seems to me a strong indication of the presence of an exception. 
The difficulty as a lawyer, even a lawyer that is reasonably 
knowledgeable about these matters, is that I don't understand what 
the terms of that exception are.

So, say I want to audit a system, say an embedded product, in which 
I find non-GPL loadable kernel modules present, how do I know 
whether that fits within an exception which is legitimately 
available to third parties and when it is not?


So then there are parties in the world who think they are in legal 
trouble on one side with the regulators if they do release source 
code for loadable kernel modules that drive their software-
controlled radios, and they don't know if they're in legal trouble 
on the other side if they don't release source code. For those 
parties, in particular, it would be very helpful if the kernel 
developers had decided to formalize the nature of their exceptions, 
and the Free Software Foundation and I have made a few attempts to 
discuss that matter with kernel developers. I had conversations 
with Ted Ts'o, I talked to Linus about it and I understood there 
were some reluctances to clarify, in a full and complete way, what 
was going on. There may have even been disagreements among kernel 
developers about that, I wouldn't know. But I continue to think 
that it would be useful, for a whole variety of people who are 
trying in good faith to do the very best they can, and who may be 
navigating some dodgy legal territory, for them to be able to 
refer to something beyond the COPYING file which -- with all due 
respect -- I think probably doesn't contain all the terms that are 
relevant to the use of the kernel.


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