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Re: Intellectual Property II

From: Alexander Terekhov
Subject: Re: Intellectual Property II
Date: Wed, 08 Feb 2006 00:48:07 +0100

Just to stress...

Alexander Terekhov wrote:
> 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. 

LWN: So, if the kernel is covered solely by the GPL, you would see 
proprietary modules as an infringement?

Eben: Yes. I think we would all accept that. I think that the 
degree of interpenetration between kernel modules and the remainder 
of the kernel is very great, I think it's clear that a kernel with 
some modules loaded is a "a work" and because any module that is 
dynamically loaded could be statically linked into the kernel, and 
because I'm sure that the mere method of linkage is not what 
determines what violates the GPL, I think it would be very clear 
analytically that non-GPL loadable kernel modules would violate the 
license if it's pure GPL.

And (from another Moglen's piece regarding GNU legal system)

After many years of securing compliance with copyright law as it 
applies to GPL'd work, and in view of recent court decisions in 
Germany, to say nothing of SCO, I think there should be no remaining 
doubt in any well-informed mind about the legal soundness of GPL.

Recent court decisions in Germany?

Note that that Visiting Fellow at the Oxford Internet Institute is no


Member/Vice President, German Association for Law and Informatics (DGRI);
Member, Society for Computers and Law, U.K.;
Member, German-Japanese Law Association, Hamburg and Tokyo;
Co-editor "Computer und Recht", Computer and Law, Cologne;
Member, Institute for European Media law, Saarbr├╝cken;
Member, Editorial Board, Law, Computers and Artificial Intelligence,
BNA's Electronic
Information Policy and Law Report and EDI Law Review;
Legal Advisor, European Commission/DG XIII, Legal Advisory Board on
Information Technology;
Co-editor, Multimedia und Recht, Munich;
Member, Task Force Group on Intellectual Property Rights of the
European Commission;
Legal expert in several research projects commissioned by the European
Commission/DG III
Member, Legal Advisory Board, DENIC, Frankfurt.


Intellectual Property law;
Internet Regulation;
Information Law;
Unfair Competition Law;
International Business Law.


Judge at the Court of Appeal in D├╝sseldorf within the Trademark &
Copyright Senate;
Professor in Intellectual Property Law at the University of Muenster;
Member, Task Force Group on Intellectual Property Law, European
Commission/DG XIII. 

Now the most charming part of that Moglen's piece regarding GNU legal 

As to the definition of "derivative work," the uncertainty is 
experienced by those who would like to make proprietary uses of 
GPL'd code, and are unsure whether a particular way of making a 
proprietary enhancement to a free work will certainly or only 
arguably infringe the free developer's copyright. The correct 
answer, of course, is that those who want to take advantage of the 
enormous quantity of freely distributable "best of breed" 
software now available should do so in a fashion that respects the 
principle of freedom in which it was created. All doubt can be 
eliminated, for Mr. Michaelson and all other seekers after wisdom, 
if they remember what they learned in kindergarten: share and share 
alike. IBM, HP, Novell, and other very large and very profit-minded 
businesses have no problem with this, nor should Mr. Michaelson's 

Well, "HP, Novell, and other very large and very profit-minded" 
aside for a moment,
(OCO modules for the "October 2005 stream")

It doesn't seem to match with Moglen's alternative reality.


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