From mboxrd@z Thu Jan 1 00:00:00 1970 Return-Path: Received: (majordomo@vger.kernel.org) by vger.kernel.org via listexpand id S263702AbTLDXu7 (ORCPT ); Thu, 4 Dec 2003 18:50:59 -0500 Received: (majordomo@vger.kernel.org) by vger.kernel.org id S263742AbTLDXu7 (ORCPT ); Thu, 4 Dec 2003 18:50:59 -0500 Received: from web21503.mail.yahoo.com ([66.163.169.14]:64659 "HELO web21503.mail.yahoo.com") by vger.kernel.org with SMTP id S263702AbTLDXu4 (ORCPT ); Thu, 4 Dec 2003 18:50:56 -0500 Message-ID: <20031204235055.62846.qmail@web21503.mail.yahoo.com> Date: Thu, 4 Dec 2003 15:50:55 -0800 (PST) From: Paul Adams Subject: Re: Linux GPL and binary module exception clause? To: linux-kernel@vger.kernel.org MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: linux-kernel-owner@vger.kernel.org X-Mailing-List: linux-kernel@vger.kernel.org --- In linux-kernel@yahoogroups.com, Linus Torvalds wrote: > - anything that was written with Linux in mind (whether it then > _also_ works on other operating systems or not) is clearly > partially a derived work. I am no more a lawyer than you are, but I have to disagree. You are not free to define "derivative work" as you please. You must use accepted legal definitions. At least in the U.S., you must consider what Congress had to say on this. They said, "to constitute a violation of section 106(2) [which gives copyright owners rights over derivative works], the infringing work must incorporate a portion of the copyrighted work in some form; for example, a detailed commentary on a work or a programmatic musical composition inspired by a novel would not normally constitute infringements under this clause." http://www4.law.cornell.edu/uscode/17/106.notes.html A work that is inspired by Linux is no more a derivative work than a programmatic musical composition inspired by a novel. Having Linux in mind cannot be enough to constitute infringement. Remember also that U.S. copyright law states: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." http://www4.law.cornell.edu/uscode/17/102.html Thus you cannot claim infringement because a work merely shares ideas or methods of operation with Linux. The standard used in U.S. courts for determining if software violates a copyright includes a filtering procedure to eliminate unprotected aspects as described above. A standard filter is that you eliminate an element if "The element's expression was dictated by external factors, such as using an existing file format or interoperating with another program." Computer Associates v. Altai specifically discusses the need to filter elements related to "compatibility requirements of other programs with which a program is designed to operate in conjunction." http://www.bitlaw.com/source/cases/copyright/altai.html Code needed to interoperate with the Linux kernel thus cannot be considered as a factor in determining if the Linux copyright is infringed. Unless actual Linux code is incorporated in a binary distribution in some form, I don't see how you can claim infringement of the copyright on Linux code, at least in the U.S. __________________________________ Do you Yahoo!? Free Pop-Up Blocker - Get it now http://companion.yahoo.com/