On Wed, 3 Sep 2003, Joel Jaeggli wrote:
>there is also a seperate issue in dealing with binary modules shims and
>modules in general as to when modules constitute derived works of the
>kernel... take a look at COPYING.modules in a modern linux kernel tree for
>a far better treatment of the issues raised there than I could provide.
There is no COPYING.modules file in Linus's linux-2.6.0-test4.
I am not a lawyer, so please do not use the following
as legal advice.
I believe that proprietary Linux kernel modules are generally
illegal, even those that are not directly derived from any GPL'ed
source code. Loading a proprietary module into a GPL'ed kernel
produces a prohibited derivative work.
There is also infringement by the producers of the software,
not just end users. Even when a proprietary Linux kernel module
is not derived from any GPL'ed software, it contains or needs
some glue code that makes it work in Linux. Sometimes this glue
code is arranged as a separate module, as is done in the Atheros
driver. The only use of this glue code is to enable the end user
to commit copyright infrginement by loading the module. The glue
code fails the "substantial non-infringing use" test for contributory
copyright infrginement from the 1984 US Supreme Court case
Sony Corporation of America v. Universal City Studios, Inc.
("the betamax decision").
Lest anyone claim that Linus Torvalds granted permission for
proprietary kernel modules in his usenet posting of December 17, 1995 [1],
let me point out that Linus can only grant permission with respect
to his own copyrights, and there are many Linux copyright holders.
Also Linus postings of October 17, 2002 [2,3] seem to indicate
that we was just making claims (incorrect, I think) about
what copyright law can enforce ("There is NOTHING in the kernel
license that allows modules to be non-GPL'd.", Linus's capitalization).
[1] http://groups.google.com/groups?selm=4b0rbb%245iu%40klaava.helsinki.fi
[2] http://people.redhat.com/rkeech/pkm.html
[3]
http://groups.google.com/groups?selm=Pine.LNX.4.44.0210171015440.7066-100000%40home.transmeta.com.lucky.linux.kernel
Again, I am not a lawyer, so please do not rely on this as
legal advice.
Adam J. Richter __ ______________ 575 Oroville Road
[EMAIL PROTECTED] \ / Milpitas, California 95035
+1 408 309-6081 | g g d r a s i l United States of America
"Free Software For The Rest Of Us."
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