Re: GPL only modules [was Re: [GIT PATCH] more Driver core patches for 2.6.19]

Re: GPL only modules [was Re: [GIT PATCH] more Driver core patches for 2.6.19]

[Ricardo Galli]

> I think it would be a hell of a lot better idea if people just realized
> that they have "fair use" rights whether the authors give them or not, and
                 ^^^^^^^^^
> that the authors copyrights NEVER extend to anything but a "derived work"
...
> I find the RIAA's position and the DMCA distasteful, and in that I
> probably have a lot of things in common with a lot of people on this list.
> But by _exactly_ the same token, I also find the FSF's position and a lot
> of GPL zealots' position on this matter very distasteful.
...
> Because "fair use" is NOT somethng that should be specified in the
          ^^^^^^^^^
> license.

As you probably know, the GPL, the FSF, RMS or even GPL "zealots" never tried 
to change or restrict "fair use". GPL[23] covers only to "distibution" of the 
covered program. The freedom #0 says explicitly: "right to use the program 
for any purpose".

So, I don't see any clash here between GPL/FSF/RMS with "fair use"

And you probably know that any GPLed code can be linked and executed with any 
other program, whatever is its license if it's for personal use (is that 
worse than "fair use"?). 

And even if there is a function in linux that disables loading of non GPL 
modules, it's still allowed under the GPL to distribute a kernel with those 
functions removed. Any user can load any other module in this kernel without 
worrying about "fair use" or "derived work", GPL allows her to do it.

So, where's the freaking relationship between GPL (or its "zealots") and "fair 
use"? Who is trying to re-define it?

FUD, FUD, FUD.

-- 
  ricardo galli       GPG id C8114D34
  http://mnm.uib.es/gallir/

Re: GPL only modules [was Re: [GIT PATCH] more Driver core patches for 2.6.19]

[Linus Torvalds]

On Sat, 16 Dec 2006, Ricardo Galli wrote:

> As you probably know, the GPL, the FSF, RMS or even GPL "zealots" never tried 
> to change or restrict "fair use". GPL[23] covers only to "distibution" of the 
> covered program. The freedom #0 says explicitly: "right to use the program 
> for any purpose".

I'm sorry, but you're just rewriting history.

The FSF very much _has_ tried to make "fair use" a very restricted issue. 
The whole reason the LGPL exists is that people realized that if they 
don't do something like that, the GPL would have been tried in court, and 
the FSF's position that anything that touches GPL'd code would probably 
have been shown to be bogus.

In reality, if the FSF actually believed in "fair use", they would just 
have admitted that GNU libc could have continued to be under the GPL, and 
that any programs that link against it are obviously not "derived" from 
it.

But no. The FSF has very much tried to confuse and muddle the issue, and 
instead have claimed that projects like glibc should be done under the 
"Lesser" GPL.

That's just idiocy, but it works as a way to defuse the problem that the 
FSF has always had with admitting that not only _they_ have "fair use" 
rights, but others have them too.

Do you REALLY believe that a binary becomes a "derived work" of any random 
library that it gets linked against? If that's not "fair use" of a library 
that implements a standard library definition, I don't know what is.

And yes, the FSF really has tried to push that totally insane argument. 

So don't tell me that the FSF honors "fair use". They say they do, but 
they only seem to honor it when it helps _their_ argument, not when it 
helps "those evil people who try to take advantage of our hard work".

The fact is, if you accept fair use, you have to accept it for other 
people to take advantage of too. Fair use really isn't just a one-way 
street.

		Linus

Re: GPL only modules [was Re: [GIT PATCH] more Driver core patches for 2.6.19]

[Ricardo Galli]

On Saturday 16 December 2006 22:01, Linus Torvalds wrote:
> On Sat, 16 Dec 2006, Ricardo Galli wrote:
> > As you probably know, the GPL, the FSF, RMS or even GPL "zealots" never
> > tried to change or restrict "fair use". GPL[23] covers only to
> > "distibution" of the covered program. The freedom #0 says explicitly:
> > "right to use the program for any purpose".
>
> I'm sorry, but you're just rewriting history.
>
> The FSF very much _has_ tried to make "fair use" a very restricted issue.
> The whole reason the LGPL exists is that people realized that if they
> don't do something like that, the GPL would have been tried in court, and
> the FSF's position that anything that touches GPL'd code would probably
> have been shown to be bogus.
>
> In reality, if the FSF actually believed in "fair use", they would just
> have admitted that GNU libc could have continued to be under the GPL, and
> that any programs that link against it are obviously not "derived" from
> it.
>
> But no. The FSF has very much tried to confuse and muddle the issue, and
> instead have claimed that projects like glibc should be done under the
> "Lesser" GPL.

OK, let assume your perspective of the history is the valid and real one, 
then, ¿where are all lawsits against other big GPL only projects? For example 
libqt/kdelibs. You can hardly provide any example where the GPL wasn't hold 
in court.

> The fact is, if you accept fair use, you have to accept it for other
> people to take advantage of too. Fair use really isn't just a one-way
> street.

"Fair use: The right set forth in Section 107 of the United States Copyright 
Act, to use copyrighted materials for certain purposes, such as criticism, 
comment, news reporting, teaching, scholarship, and research. The Copyright 
Act does not define fair use. Instead, whether a use is fair use is 
determined by balancing these factors: ..."

According to the law, I don't see how FSF tries to avoid or to reject the fair 
use rights.

It seems to me you provides us with a copyright law interpretation supported 
only by the very [narrow] exceptions of the copyright law, a logical fallacy.


-- 
  ricardo galli       GPG id C8114D34
  http://mnm.uib.es/gallir/

Re: GPL only modules [was Re: [GIT PATCH] more Driver core patches for 2.6.19]

[Theodore Tso]

On Sun, Dec 17, 2006 at 01:22:12AM +0100, Ricardo Galli wrote:
> OK, let assume your perspective of the history is the valid and real one, 
> then, ¿where are all lawsits against other big GPL only projects? For example 
> libqt/kdelibs. You can hardly provide any example where the GPL wasn't hold 
> in court.

There's no need for lawsuits against things like libqt.  The question
is whether someone who writes a commercial program that happens to
dynamically link against libqt is in fact in violation of copyright
claims.  In such a case, the owners of libqt would have to sue the
commercial application writer, not the other way around.  There
haven't been any such cases, mostly because (a) the FUD generated by
the FSF about GPL vs. LGPL has generally been enough to cause
application authors to avoid using GPL'ed code even if it would be
legally defensible in court, and (b) I personally suspect that the FSF
has deliberately not tried to make a test case out of a commercial
application dynamically linking against a GPL'ed library.

In point of fact, if you compile libss from e2fsprogs on a Solaris
machine, and then let the Sun Enterprise Authentication Mechanism (a
propietary version of Kerberos v5) link against that version of libss
(as opposed to the one derived from the MIT Kerberos version of
libss), you can have a propietary Sun binary linking against libss
which will called will dynamically pull in the GPL'ed version of
readline (or the BSD licensed editline library, whichever one it finds
first in its search path).  Quick!  Is there a GPL violation involved,
and if so, who should the FSF try to sue first?

There are indeed plenty of cases where the GPL has been upheld in a
court of law, but usually it's some straightforward case of an
embedded version of Linux being used without releasing source.  As far
as I know, there has been no case on point about GPL and dynamic
linking, and I personally suspect it's at least partially because the
FSF is afraid it would lose such a case.  (As I've said, at least one
law professor of mine from the MIT Sloan School of Management has told
me that in her opinion the FSF's theory would be "laughed out of
court").

						- Ted

Re: GPL only modules

[Alexandre Oliva]

On Dec 16, 2006, Linus Torvalds <torvalds@osdl.org> wrote:

> The whole reason the LGPL exists is that people realized that if they 
> don't do something like that, the GPL would have been tried in court, and 
> the FSF's position that anything that touches GPL'd code would probably 
> have been shown to be bogus.

Or that people would feel uncomfortable about the gray area and avoid
using the GPLed code in cases in which this would be perfectly legal
and advantageous to Free Software.  Sure enough, when people create
and distribute proprietary code by taking advantage of Free Software,
that's something to be avoided, but since there are other Free
Software licenses that are not compatible with the GNU GPL, it made
sense to enable software licensed under them to be combined with these
few libraries.  Letting concerns about copyright infringement, be such
acts permissible by law or not, scare Free Software developers away
from Free Software was not good for Free Software.

> Do you REALLY believe that a binary becomes a "derived work" of any random 
> library that it gets linked against? If that's not "fair use" of a library 
> that implements a standard library definition, I don't know what is.

There are many factors involved and you're oversimplifying the issue.

Some claim that, in the case of static linking, since there part of
the library copied to the binary, it is definitely a case of derived
work.

Some then take this notion that linking creates derived works and
further extend the claim that using dynamic linking is just a trick to
avoid making the binary a derived work, and thus it shouldn't be taken
into account, even if there still is *some* information from the
dynamic library that affects the linked binary.

Others then introduce exceptions such as the existence of another
implementation of the library that is binary- and license-compatible,
and that thus might make the license of the library actually used to
create the binary irrelevant.

Some disregard the fact that header files sometimes aren't just
interface definitions, but they also contain functional code, in the
form of preprocessor macros and inline functions, that, if used, do
make it to the binary.

All of these arguments have their strengths and weaknesses.  As you
and others point out, and it matches my personal knowledge, none of
them has been tried in court, and the outcome of a court dispute will
often depend on specifics anyway.

So calling these arguments idiocy is as presumptuous as FSF's alleged
behavior.  While at that, I feel you allegation is groundless, and I
hope this message makes it clear why, so I wish you'd take it back.


The gray area between what is clearly permitted by a license and the
murky lines that determine what constitutes a derived work, and what
is fair use even if it's a derived work, is not for any of us to
decide.  The best we can do is to offer interpretations on intent of
license authors and software authors, and of laws.  Even though we're
not lawyers or judges, such interpretations may be taken into account
in court disputes.

When the FSF says a license does not permit such and such behavior,
you apparently interpret that as a statement that the FSF thinks this
behavior wouldn't be permissible by fair use either.  This is an
incorrect interpretation.  As we've seen above, there *is* a gray area
beyond what is permitted by the license.  But the FSF must not give
anyone the impression that the *license* permits actions that would
make it less effective in fulfilling its intent, this would just
weaken the license.

Similarly, when you make an unqualified statement that some action is
permitted, because you mean it's permitted by fair use even if not by
the license, this might be mis-interpreted as something explicitly
permitted by the license.  So this weakens the license, one of our
most valuable tools to make the world a better place.  Is this what
you intend to do?  I hope not.

Thanks,

-- 
Alexandre Oliva         http://www.lsd.ic.unicamp.br/~oliva/
FSF Latin America Board Member         http://www.fsfla.org/
Red Hat Compiler Engineer   aoliva@{redhat.com, gcc.gnu.org}
Free Software Evangelist  oliva@{lsd.ic.unicamp.br, gnu.org}

Re: GPL only modules

[Ricardo Galli]

On Sunday 17 December 2006 14:54, Alexandre Oliva wrote:
> > The whole reason the LGPL exists is that people realized that if they
> > don't do something like that, the GPL would have been tried in court, and
> > the FSF's position that anything that touches GPL'd code would probably
> > have been shown to be bogus.
>
> Or that people would feel uncomfortable about the gray area and avoid
> using the GPLed code in cases in which this would be perfectly legal
> and advantageous to Free Software.  Sure enough, when people create
> and distribute proprietary code by taking advantage of Free Software,
> that's something to be avoided, but since there are other Free
> Software licenses that are not compatible with the GNU GPL, it made
> sense to enable software licensed under them to be combined with these
> few libraries.  Letting concerns about copyright infringement, be such
> acts permissible by law or not, scare Free Software developers away
> from Free Software was not good for Free Software.

LGPL somehow fixes this gray area to allow a wider and clear "fair use" by 
allowing people to easily[*] run proprietary programs in a free operating 
system.

[*] In the sense they don't need to compile/link the program themselves, which 
is clearly legal under the GPL and the FSF intentions (freedom #0).

So, people that just worries about "fair use" could interpret it --besides 
the "official" arguments- as a message that makes clear FSF is not trying to 
push his agenda into the gray areas of copyright laws.

But the very same evidence is used to loudly support an opposite 
interpretation of FSF [evil] intentions, to weaken the legal strength of the 
GPL, and to accuse FSF of pushing some hidden and insane arguments.

Presumptuous, to say the least.

-- 
  ricardo galli       GPG id C8114D34
  http://mnm.uib.es/gallir/

Re: GPL only modules

[Kyle Moffett]

On Dec 17, 2006, at 08:54:17, Alexandre Oliva wrote:
> On Dec 16, 2006, Linus Torvalds <torvalds@osdl.org> wrote:
>> Do you REALLY believe that a binary becomes a "derived work" of  
>> any random library that it gets linked against? If that's not  
>> "fair use" of a library that implements a standard library  
>> definition, I don't know what is.
>
> Some disregard the fact that header files sometimes aren't just  
> interface definitions, but they also contain functional code, in  
> the form of preprocessor macros and inline functions, that, if  
> used, do make it to the binary.

I would argue that this is _particularly_ pertinent with regards to  
Linux.  For example, if you look at many of our atomics or locking  
operations a good number of them (depending on architecture and  
version) are inline assembly that are directly output into the code  
which uses them.  As a result any binary module which uses those  
functions from the Linux headers is fairly directly a derivative work  
of the GPL headers because it contains machine code translated  
literally from GPLed assembly code found therein.  There are also a  
fair number of large perhaps-wrongly inline functions of which the  
use of any one would be likely to make the resulting binary  
"derivative".

On the other hand, certain projects like OpenAFS, while not license- 
compatible, are certainly not derivative works.  The project was  
created independently of Linux and operates on several different  
operating systems, so even though it uses the very-Linux-specific  
keyring interfaces under 2.6, no GPL licensing could possibly apply.

> The gray area between what is clearly permitted by a license and  
> the murky lines that determine what constitutes a derived work, and  
> what is fair use even if it's a derived work, is not for any of us  
> to decide. The best we can do is to offer interpretations on intent  
> of license authors and software authors, and of laws.  Even though  
> we're not lawyers or judges, such interpretations may be taken into  
> account in court disputes.

I agree, and I think that this thread has outlived its useful life.

Cheers,
Kyle Moffett

Re: GPL only modules

[Linus Torvalds]

On Sun, 17 Dec 2006, Alexandre Oliva wrote:

> On Dec 16, 2006, Linus Torvalds <torvalds@osdl.org> wrote:
> > 
> > The whole reason the LGPL exists is that people realized that if they 
> > don't do something like that, the GPL would have been tried in court, and 
> > the FSF's position that anything that touches GPL'd code would probably 
> > have been shown to be bogus.
> 
> Or that people would feel uncomfortable about the gray area and avoid
> using the GPLed code in cases in which this would be perfectly legal
> and advantageous to Free Software. 

I agree. A lot of it is about "comfort". But you can _easily_ handle that 
comfort level in other ways.

For example, many programs already do have clarifications that certain 
uses do not introduce any GPL dependency what-so-ever. The kernel COPYING 
makes it clear that user space is not a derived work of the kernel, for 
example. You don't actually need to use a different license for this case: 
if all you're looking for is "comfort", then you really can comfort people 
other ways.

For example, glibc could easily have just come out and said the thing that 
is obvious to any sane person: "using this library as just a standard 
library does not make your program a derived work". 

There really wassn't much need for the LGPL, I think. 

> There are many factors involved and you're oversimplifying the issue.

Sure. It's never clear-cut. It's never black and white. 

> Some claim that, in the case of static linking, since there part of
> the library copied to the binary, it is definitely a case of derived
> work.

No, the sane way to think about it is that linking just creates an 
"aggregate" work. It's no less "aggregate" than creating a CD-ROM that 
contains the library and some random program: you "link" them together 
with "mkisofs".

Why do people think that using "ln" is _any_ different from using 
"mkisofs". Both create one file that contains multiple pieces. What's the 
difference - really?

Of course, the _aggregate_ still needs permission from all the copyright 
holders in order to be distributed, that goes without saying. But the 
GPLv2 clearly allows aggregation.

And don't get me wrong: I do not say that "linking" _never_ creates 
derived works. I'm just saying that "linking" is just a technical step, 
and as such is not the answer to whether something is derived or not. 
Things can be derived works of each other _without_ being linked, and they 
may not be derived works even if they _are_ linked.

So "linking" basically has very little to do with "derived" per se.

Linking does have one thing that it implies: it's maybe a bit "closer" 
relationship between the parts than "mkisofs" implies. So there is 
definitely a higher _correlation_ between "derived work" and "linking", 
but it's really a correlation, not a causal relationship.

For example, if you link two object files together where neither is a 
"library" with standard interfaces, then the result is most likely a 
derived work from both. But it wasn't the "act of linking" that caused 
that to happen, but simply the fact that they were part of a bigger whole, 
and were meaningless apart from each other.

Think of this in the sense of a book. Does binding pages together create a 
"derived work"? Not always: you can have anthologies (which are 
*aggregations* of works with *independent* copyright), and the binding of 
pages together didn't really do anything to the independent pieces. But 
clearly, if you're talking about individual pages in one story, then each 
individual page is not an independent work in itself.

Linking is the same way. Are the two pieces you link "independent works" 
on their own? If so, the end result is really just an aggregate, no 
different from using "mkisofs". They are still clearly separable: you 
could have built either piece AGAINST SOMETHING ELSE.

> Some then take this notion that linking creates derived works and
> further extend the claim that using dynamic linking is just a trick to
> avoid making the binary a derived work, and thus it shouldn't be taken
> into account, even if there still is *some* information from the
> dynamic library that affects the linked binary.

See how this whole "trick" discussion becomes a totally moot point once 
you realize that "mkisofs" and "ld" aren't really all that different.

Does "mkisofs" create a derived work, or an aggregate? Does "ld" create a 
derived work or an aggregate? The answer in BOTH cases is the same: it's 
not about the name of the command, or some technical detail about how the 
pieces are bound together. Copyright law doesn't concern itself with 
"mkisofs" vs "ld". It would be totally INSANE if it did, wouldn't you say?

So if it isn't about "mkisofs" vs "ld", then _what_ is it about?

I gave you one answer above. Feel free to make your own judgements. I'm 
just saying that anybody who thinks that copyright law cares about 
"mkisofs" vs "ld" is just obviously misguided.

So I think the "dynamic vs static" linking argument is a red herring. It 
_is_ meaningful in two ways:

 - static linking obviously means that even at a MINIMUM, the result will 
   _contain_ both things, so at a minimum, you do need the permission to 
   distribute the pieces as parts of an aggregate work.

   In contrast,  in dynamic linking, since you're not _actually_ 
   distributing the thing you linked against, you don't need to have the 
   license to distribute it as an aggregate work.

   This particular thing is a non-issue wrt the GPLv2, since you always 
   have the right to do distribution of aggregates, but it does come up in 
   some OTHER licenses.

 - you can (quite validly, in my opinion) argue that dynamic linking is a 
   sign of separation, and as such if you're able to do dynamic linking 
   against an unmodified second work, you have a much stronger argument 
   that they really can be seen as two independent works. But notice how 
   this was not a technical argument about the _linking_ per se: this 
   comes back to a much more important (and much more fundamental) issue 
   of whether things are independent (and being independent is certainly 
   one _requirement_ for them not being derived works)

   In other words: the _ability_ to do dynamic linking is certainly 
   meaningful, not because of the linking itself, but because of what it 
   implies from a perspective of "independence".

So to get back to the example of glibc: if a program _could_ have been 
linked against some other library, then that pretty clearly shows that 
it's really independent of glibc, and the linking is "mere aggregation" 
exactly the same way "mkisofs" is generally considered "mere aggregation".

And that is actually true whether you link dynamically or statically. 
Since the GPLv2 allows aggregation, I think you can very much argue in 
front of a judge that you could have linked statically against even a 
GPL'd glibc.

But notice how the thing changes if you talk about a specialized library 
like libqt - and notice how it again doesn't really matter whether you do 
dynamic or static linking. Libqt is still a work in its own right, but 
what about the program that links _to_ it? You can't generally really 
claim that it could equally well have been built against some other 
library, so now that program - whether linked dynamically or statically - 
obviously cannot stand on its own independently of libqt.

As a result, something that links against libqt is very different from 
something that links against glibc. 

But note how it wasn't "static" vs "dynamic" that mattered AT ALL. What 
mattered was whether they had independent lives.

And finally, in case it's not clear: I'm not a lawyer, and I don't play 
one on TV, and if I did, I'd be better looking and wouldn't spend my time 
on some technical discussion forum. So I'm not claiming that my viewpoint 
is "Right(tm)".

But I _am_ claiming that it makes a hell of a lot more sense as a 
viewpoint than the "linking is magic" argument does.

			Linus

RE: GPL only modules

[David Schwartz]

> I would argue that this is _particularly_ pertinent with regards to
> Linux.  For example, if you look at many of our atomics or locking
> operations a good number of them (depending on architecture and
> version) are inline assembly that are directly output into the code
> which uses them.  As a result any binary module which uses those
> functions from the Linux headers is fairly directly a derivative work
> of the GPL headers because it contains machine code translated
> literally from GPLed assembly code found therein.  There are also a
> fair number of large perhaps-wrongly inline functions of which the
> use of any one would be likely to make the resulting binary
> "derivative".

That's not protectable expression under United States law. See Lexmark v.
Static Controls and the analogous case of the TLP (ignore the DMCA stuff in
that case, that's not relevant). If you want to make that kind of content
protectable, you have to get it out of the header files.

You cannot protect, by copyright, every reasonably practical way of
performing a function. Only a patent can do that. If taking something is
reasonably necessary to express a particular idea (and a Linux module for
the ATI X850 card is an idea), then that something cannot be protected by
copyright when it is used to express that idea. (Even if it would clearly be
protectably expression in another context.)

The premise of copyright is that there are millions of equally-good ways to
express the same idea or perform the same function, and you creatively pick
one, and that choice is protected. But if I'm developing a Linux module for
a particular network card, choosing to use the Linux kernel header files is
the only practical choice to perform that particular function. So their
content is not protectable when used in that context. (If you make another
way to do it, then the content becomes protectable in that context again.)

IANAL.

DS

Re: GPL only modules

[D. Hazelton]

On Sunday 17 December 2006 16:32, David Schwartz wrote:
> > I would argue that this is _particularly_ pertinent with regards to
> > Linux.  For example, if you look at many of our atomics or locking
> > operations a good number of them (depending on architecture and
> > version) are inline assembly that are directly output into the code
> > which uses them.  As a result any binary module which uses those
> > functions from the Linux headers is fairly directly a derivative work
> > of the GPL headers because it contains machine code translated
> > literally from GPLed assembly code found therein.  There are also a
> > fair number of large perhaps-wrongly inline functions of which the
> > use of any one would be likely to make the resulting binary
> > "derivative".
>
> That's not protectable expression under United States law. See Lexmark v.
> Static Controls and the analogous case of the TLP (ignore the DMCA stuff in
> that case, that's not relevant). If you want to make that kind of content
> protectable, you have to get it out of the header files.
>
> You cannot protect, by copyright, every reasonably practical way of
> performing a function. Only a patent can do that. If taking something is
> reasonably necessary to express a particular idea (and a Linux module for
> the ATI X850 card is an idea), then that something cannot be protected by
> copyright when it is used to express that idea. (Even if it would clearly
> be protectably expression in another context.)
>
> The premise of copyright is that there are millions of equally-good ways to
> express the same idea or perform the same function, and you creatively pick
> one, and that choice is protected. But if I'm developing a Linux module for
> a particular network card, choosing to use the Linux kernel header files is
> the only practical choice to perform that particular function. So their
> content is not protectable when used in that context. (If you make another
> way to do it, then the content becomes protectable in that context again.)
>
> IANAL.
>
> DS

Agreed. You missed the point. Since the Linux Kernel header files contain a 
chunk of the source code for the kernel in the form of the macros for locking 
et. al. then using the headers - including that code in your module - makes 
it a derivative work.

Actually, thinking about it, the way a Linux driver module works actually 
seems to make *ANY* driver a derivative work, because they are loaded into 
the kernels memory space and cannot function without having that done.

*IF* the "Usermode Driver" interface that is being worked on ever proves 
useful then, and only then, could you consider it *NOT* a derivative work. 
Because then the only thing it is using *IS* an interface, not complete 
chunks of the source as generated when the pre-processor finishes running 
through the file.

But as David said - IANAL

D. Hazelton

Re: GPL only modules

[Paul Mackerras]

Linus Torvalds writes:

> Why do people think that using "ln" is _any_ different from using 
> "mkisofs". Both create one file that contains multiple pieces. What's the 
> difference - really?

The difference - really - at least for static linking - is that "ln"
makes modifications to each piece to make them work together, and in
the case of a library, makes a selection of the parts of the library
as needed by the rest of the program.  What ends up in the executable
is not just a set of verbatim copies of the input files packed
together, but rather a single program where the various parts have
been modified so as to fit together and create a whole.  Thus it seems
quite reasonable to me to say that a statically linked binary is a
derived work of all of the object files and libraries that were linked
together to form it.  IANAL, of course.

Dynamic linking is different, of course, if only because the final
runnable program is never distributed, but only formed in memory
during execution.  Also, the shared libraries are not modified and
incorporated during linking.

Paul.

Re: GPL only modules

[Junio C Hamano]

Paul Mackerras <paulus@samba.org> writes:

> Linus Torvalds writes:
>
>> Why do people think that using "ln" is _any_ different from using 
>> "mkisofs". Both create one file that contains multiple pieces. What's the 
>> difference - really?
>
> The difference - really - at least for static linking - is that "ln"
> makes modifications to each piece to make them work together, and in
> the case of a library, makes a selection of the parts of the library
> as needed by the rest of the program.

Excuse me, but are you two discussing "ld"? ;-)

Re: GPL only modules

[Dave Neuer]

On 12/17/06, Linus Torvalds <torvalds@osdl.org> wrote:
>
> Linking does have one thing that it implies: it's maybe a bit "closer"
> relationship between the parts than "mkisofs" implies. So there is
> definitely a higher _correlation_ between "derived work" and "linking",
> but it's really a correlation, not a causal relationship.
>
> But it wasn't the "act of linking" that caused
> that to happen, but simply the fact that they were part of a bigger whole,
> and were meaningless apart from each other.

I think this is the key, both with libraries and w/ your book example
below; the concept of independant "meaning." If your code doesn't do
whatever it is supposed to do _unless_ it is linked with _my_ code,
then it seems fairly clear that your code is derivative of mine, just
as your sequel to my novel (or your pages added onto my book) don't
"mean" anything if someone hasn't read mine.

>
> Think of this in the sense of a book. Does binding pages together create a
> "derived work"? Not always: you can have anthologies (which are
> *aggregations* of works with *independent* copyright), and the binding of
> pages together didn't really do anything to the independent pieces. But
> clearly, if you're talking about individual pages in one story, then each
> individual page is not an independent work in itself.

Dave

Re: GPL only modules

[Dave Neuer]

On 12/17/06, D. Hazelton <dhazelton@enter.net> wrote:
> On Sunday 17 December 2006 16:32, David Schwartz wrote:
> > > I would argue that this is _particularly_ pertinent with regards to
> > > Linux.  For example, if you look at many of our atomics or locking
> > > operations a good number of them (depending on architecture and
> > > version) are inline assembly that are directly output into the code
> > > which uses them.  As a result any binary module which uses those
> > > functions from the Linux headers is fairly directly a derivative work
> > > of the GPL headers because it contains machine code translated
> > > literally from GPLed assembly code found therein.  There are also a
> > > fair number of large perhaps-wrongly inline functions of which the
> > > use of any one would be likely to make the resulting binary
> > > "derivative".
> >
> > That's not protectable expression under United States law. See Lexmark v.
> > Static Controls and the analogous case of the TLP (ignore the DMCA stuff in
> > that case, that's not relevant). If you want to make that kind of content
> > protectable, you have to get it out of the header files.
> >
> > You cannot protect, by copyright, every reasonably practical way of
> > performing a function. Only a patent can do that. If taking something is
> > reasonably necessary to express a particular idea (and a Linux module for
> > the ATI X850 card is an idea), then that something cannot be protected by
> > copyright when it is used to express that idea. (Even if it would clearly
> > be protectably expression in another context.)
> >
> > The premise of copyright is that there are millions of equally-good ways to
> > express the same idea or perform the same function, and you creatively pick
> > one, and that choice is protected. But if I'm developing a Linux module for
> > a particular network card, choosing to use the Linux kernel header files is
> > the only practical choice to perform that particular function. So their
> > content is not protectable when used in that context. (If you make another
> > way to do it, then the content becomes protectable in that context again.)
> >
> > IANAL.
> >
> > DS
>
> Agreed. You missed the point. Since the Linux Kernel header files contain a
> chunk of the source code for the kernel in the form of the macros for locking
> et. al. then using the headers - including that code in your module - makes
> it a derivative work.

David didn't miss the point; Lexmark vs. Static Controls, however
unintuitively, ruled that even _verbatim_ copying is not always
copyright infringement in the case of software because of issues like
the doctrine of scenes a faire. In the case of spinlocks, if the only
way to accomplish atomic operations on an architecture is to use
something like the assembler that the inclusion of spinlock.h injects
into your binary, then according to Lexmark vs. Static Controls that
makes that included code unprotectable by copyright.

Where I disagree with David (as I have publicly before on this list),
is that he incorrectly applies the concept of "functional idea" to
"write a linux kernel module." I don't believe that is a "functional
idea" in the sense that is meaningful in the context of software
copyright or patents (at least until someone writes a piece of
software that writes kernel modules).

Dave

Re: GPL only modules

[Theodore Tso]

On Mon, Dec 18, 2006 at 10:38:38AM -0500, Dave Neuer wrote:
> I think this is the key, both with libraries and w/ your book example
> below; the concept of independant "meaning." If your code doesn't do
> whatever it is supposed to do _unless_ it is linked with _my_ code,
> then it seems fairly clear that your code is derivative of mine, just
> as your sequel to my novel (or your pages added onto my book) don't
> "mean" anything if someone hasn't read mine.

That's a wonderful theory, but I don't believe it's recognized by the
courts.  I'm also pretty sure you don't want to go there.  Consider
folks who create add-ons to Tivo player, or extensions to MacOS.  They
don't _do_ anything unless they are used with the Tivo player.  Or a
game meant for a Playstation 3; it won't _do_ anything unless it's
calls the BIOS and system functions provided by the PS3.  Does that
automatically make them derived works?

What about a GPL'ed program which interfaces with the iTunes server?
It won't _do_ anything unless it can connect across the network and
talks to iTunes code.  Does that make it a derived work?

If the answer is no --- or should be no --- then maybe you should be
more careful before making such statements.

For myself, I believe we actually get the largest amount of
programming freedom if we use a very tightly defined definition of
derived code, and not try to create new expansive definitions and try
to ram them through the court system or through legislatures.  In the
end, we may end up regretting it.

						- Ted

RE: GPL only modules

[David Schwartz]

Combined responses to save bandwidth and reduce the number of times people
have to press "d".

> Agreed. You missed the point.

I don't understand how you could lead with "agreed" and then proceed to
completely ignore the entire point I just made.

> Since the Linux Kernel header files
> contain a
> chunk of the source code for the kernel in the form of the macros
> for locking
> et. al. then using the headers - including that code in your
> module - makes
> it a derivative work.

No, it does not. The header files are purely function and not expressive in
this case. Copyright only protects one choice among many equally-practical
choices for expressing the same idea or performing the same function.

> Actually, thinking about it, the way a Linux driver module works actually
> seems to make *ANY* driver a derivative work, because they are
> loaded into
> the kernels memory space and cannot function without having that done.

If every practical way of expressing an idea contains something, then that
something is *not* protectable when used to express an idea of that kind.

> *IF* the "Usermode Driver" interface that is being worked on ever proves
> useful then, and only then, could you consider it *NOT* a
> derivative work.
> Because then the only thing it is using *IS* an interface, not complete
> chunks of the source as generated when the pre-processor finishes running
> through the file.

No, you have it completely backwards.

If a usermode driver interface was equally practical to develop a particular
type of driver, then using the kernel headers would make the driver a
derivative work. Because, in that case, the choice to use the kernel headers
would be a creative choice -- one chosen method among many equally practical
one.

Copyright only protects creative choices, not purely functional ones.

"A Linux 2.6 driver for the ATI X800 graphics chipset" is an idea. If the
only reasonably practical way to express that idea is with the Linux kernel
header files, then using the Linux kernel header files is scenes a fair, not
protected content.

For example, you cannot discuss the Napeleonic wars with using the word
"Napoleon", at least, not nearly as well. So nobody can claim copyright on
the word "Napoleon" when used to describe those wars because it is
deomnstrably *superior*. Only patents protect "best ways". Copyrights
protected "the way I choose among thousands of equally-good ways".

See Lexmark v. Static Controls and the Sega and Atari cases. This is clearly
a cases where "[w]hile, hypothetically, there might be a myriad of ways in
which a programmer may effectuate certain functions within a program . . .
efficiency concerns may so narrow the practical range of choice as to make
only one or two forms of expression workable options." "In order to
characterize a choice between alleged programming alternatives as
expressive, in short, the alternatives must be feasible within real-world
constraints."

The inclusion of the kernel header files in a kernel module is not
expressive, it's purely functional. The kernel header files are simply not
protectable expression when used in a kernel module.

-

>The difference - really - at least for static linking - is that "ln"
>makes modifications to each piece to make them work together, and in
>the case of a library, makes a selection of the parts of the library
>as needed by the rest of the program.  What ends up in the executable
>is not just a set of verbatim copies of the input files packed
>together, but rather a single program where the various parts have
>been modified so as to fit together and create a whole.  Thus it seems
>quite reasonable to me to say that a statically linked binary is a
>derived work of all of the object files and libraries that were linked
>together to form it.  IANAL, of course.

The linker makes no creative choices, so it does not produce a "work" for
copyright purposes. If it does not even produce a work, it cannot produce a
derivative work.

The question is not whether the combination is verbatim or transformative
but whether it is creative or mechanical. The linker combines things in a
mechanical and purely functional way.

A tar/gzip does the same thing. The compressed output for the third file may
be as dependent on the content of the second file as on the content of the
third file and in a very real sense will contain aspects of both of their
structures.

"Mere aggregation" does not mean a literal splicing of the raw code for two
or more files. It means a purely functional combination dictated completely
by technical concerns and lacking any creative input.

DS

Re: GPL only modules

[Dave Neuer]

On 12/18/06, Theodore Tso <tytso@mit.edu> wrote:
> On Mon, Dec 18, 2006 at 10:38:38AM -0500, Dave Neuer wrote:
> > I think this is the key, both with libraries and w/ your book example
> > below; the concept of independant "meaning." If your code doesn't do
> > whatever it is supposed to do _unless_ it is linked with _my_ code,
> > then it seems fairly clear that your code is derivative of mine, just
> > as your sequel to my novel (or your pages added onto my book) don't
> > "mean" anything if someone hasn't read mine.
>
> For myself, I believe we actually get the largest amount of
> programming freedom if we use a very tightly defined definition of
> derived code, and not try to create new expansive definitions and try
> to ram them through the court system or through legislatures.  In the
> end, we may end up regretting it.

To be sure, we as programmers will have the most freedom if there is
no form of intellectual property protection for software at all
(imagine all of those Renaissance publishers whose sensibilities would
have been quite shocked by the suggestion that their distribution of
some author's work for a small fee was somehow "theft").

It's less clear to me that a more expansive "we" will be equally well
served, freedom-wise, by less protection though I'm very sympathetic
to the argument.

>                                                 - Ted
>

Dave

Re: GPL only modules

[D. Hazelton]

On Monday 18 December 2006 10:47, Dave Neuer wrote:
> On 12/17/06, D. Hazelton <dhazelton@enter.net> wrote:
> > On Sunday 17 December 2006 16:32, David Schwartz wrote:
> > > > I would argue that this is _particularly_ pertinent with regards to
> > > > Linux.  For example, if you look at many of our atomics or locking
> > > > operations a good number of them (depending on architecture and
> > > > version) are inline assembly that are directly output into the code
> > > > which uses them.  As a result any binary module which uses those
> > > > functions from the Linux headers is fairly directly a derivative work
> > > > of the GPL headers because it contains machine code translated
> > > > literally from GPLed assembly code found therein.  There are also a
> > > > fair number of large perhaps-wrongly inline functions of which the
> > > > use of any one would be likely to make the resulting binary
> > > > "derivative".
> > >
> > > That's not protectable expression under United States law. See Lexmark
> > > v. Static Controls and the analogous case of the TLP (ignore the DMCA
> > > stuff in that case, that's not relevant). If you want to make that kind
> > > of content protectable, you have to get it out of the header files.
> > >
> > > You cannot protect, by copyright, every reasonably practical way of
> > > performing a function. Only a patent can do that. If taking something
> > > is reasonably necessary to express a particular idea (and a Linux
> > > module for the ATI X850 card is an idea), then that something cannot be
> > > protected by copyright when it is used to express that idea. (Even if
> > > it would clearly be protectably expression in another context.)
> > >
> > > The premise of copyright is that there are millions of equally-good
> > > ways to express the same idea or perform the same function, and you
> > > creatively pick one, and that choice is protected. But if I'm
> > > developing a Linux module for a particular network card, choosing to
> > > use the Linux kernel header files is the only practical choice to
> > > perform that particular function. So their content is not protectable
> > > when used in that context. (If you make another way to do it, then the
> > > content becomes protectable in that context again.)
> > >
> > > IANAL.
> > >
> > > DS
> >
> > Agreed. You missed the point. Since the Linux Kernel header files contain
> > a chunk of the source code for the kernel in the form of the macros for
> > locking et. al. then using the headers - including that code in your
> > module - makes it a derivative work.
>
> David didn't miss the point; Lexmark vs. Static Controls, however
> unintuitively, ruled that even _verbatim_ copying is not always
> copyright infringement in the case of software because of issues like
> the doctrine of scenes a faire. In the case of spinlocks, if the only
> way to accomplish atomic operations on an architecture is to use
> something like the assembler that the inclusion of spinlock.h injects
> into your binary, then according to Lexmark vs. Static Controls that
> makes that included code unprotectable by copyright.

Ah, okay. However I'm quite sure that there are more ways to accomplish the 
tasks handled by the code in the header files (in most cases). 

> Where I disagree with David (as I have publicly before on this list),
> is that he incorrectly applies the concept of "functional idea" to
> "write a linux kernel module." I don't believe that is a "functional
> idea" in the sense that is meaningful in the context of software
> copyright or patents (at least until someone writes a piece of
> software that writes kernel modules).

Agreed. And thanks for clarifying that.

DRH

Re: GPL only modules

[Alexandre Oliva]

On Dec 17, 2006, Linus Torvalds <torvalds@osdl.org> wrote:

> For example, glibc could easily have just come out and said the thing that 
> is obvious to any sane person: "using this library as just a standard 
> library does not make your program a derived work". 

> There really wassn't much need for the LGPL, I think. 

So I guess you approve of the reformulation of LGPL as an additional
permission on top of GPL, as in its draft at gplv3.fsf.org, right?

>> Some claim that, in the case of static linking, since there part of
>> the library copied to the binary, it is definitely a case of derived
>> work.

> No, the sane way to think about it is that linking just creates an 
> "aggregate" work.

That's your take on it.  It does make sense, but claiming it's *the*
sane way to think about it is making the mistake you accused the FSF
of making.


> Why do people think that using "ln" is _any_ different from using 
> "mkisofs".

Maybe because mkisofs will create a functional filesystem image out of
whatever you could possibly throw at it, while ld will perform a
number of cross-checks between the inputs it is given which indicates
a much closer relationship between the inputs?

You said so yourself, so I guess we agree.


> Does "mkisofs" create a derived work, or an aggregate?

I'd say both.  I understand it's a derived work, but one that happens
to be a mere aggregate of works that might or might not be based on a
GPLed program included in the aggregate.  Now, does this mean that a
court would be pretty much forced to admit the aggregate as a derived
work, and thus that the copyright holder (or the license author) gets
a say on what 'mere aggregate' means in the license chosen by the
copyright holder?

ld creates works that perhaps can be construed as not being mere
aggregates or even derived works, since ld doesn't always copy the
contents of its inputs to the output.  But it does extract some
information that makes to the output, and there is a closer
relationship between the works than in the mere aggregation case of
mkisofs, so there is still room for claiming that the output is a
derived work, and that it's not a mere aggregate.

In fact, it can't possibly be exempt by this paragraph in clause 2 of
the GPL:

  In addition, mere aggregation of another work not based on the
  Program with the Program (or with a work based on the Program) on a
  volume of a storage or distribution medium does not bring the other
  work under the scope of this License.

because we're not talking about mere aggregation of the work (or a
work based on it) with another work not based on the program, but
rather about whether the linker output is based on the program or not.
A court gets to decide whether it is a derived work, but since in the
dynamic linking case you're not aggregating (because you're not
copying the entire library) the program with other works not based on
the program, then this exception doesn't apply, methinks.

>    This particular thing is a non-issue wrt the GPLv2, since you always 
>    have the right to do distribution of aggregates, but it does come up in 
>    some OTHER licenses.

Make it *mere* aggregates.  That *might* turn out to be a relevant
distinction.  E.g., if there's functional dependence of one of the
elements of the aggregate on another, is the aggregate work still the
result of mere aggregation?

-- 
Alexandre Oliva         http://www.lsd.ic.unicamp.br/~oliva/
FSF Latin America Board Member         http://www.fsfla.org/
Red Hat Compiler Engineer   aoliva@{redhat.com, gcc.gnu.org}
Free Software Evangelist  oliva@{lsd.ic.unicamp.br, gnu.org}

Re: GPL only modules

[Alexandre Oliva]

On Dec 17, 2006, Kyle Moffett <mrmacman_g4@mac.com> wrote:

> On the other hand, certain projects like OpenAFS, while not license- 
> compatible, are certainly not derivative works.

Certainly a big chunk of OpenAFS might not be, just like a big chunk
of other non-GPL drivers for Linux.

But what about the glue code?  Can that be defended as not a derived
work, such that it doesn't have to be GPL?

If not, can the whole containing both the non-derivative work and the
source code providing the glue without which the whole wouldn't
fulfill its intended purpose be regarded as a mere aggregate, and thus
not be subject to the requirement that the whole be released under the
GPL?

-- 
Alexandre Oliva         http://www.lsd.ic.unicamp.br/~oliva/
FSF Latin America Board Member         http://www.fsfla.org/
Red Hat Compiler Engineer   aoliva@{redhat.com, gcc.gnu.org}
Free Software Evangelist  oliva@{lsd.ic.unicamp.br, gnu.org}

Re: GPL only modules

[Linus Torvalds]

On Mon, 18 Dec 2006, Alexandre Oliva wrote:
> 
> So I guess you approve of the reformulation of LGPL as an additional
> permission on top of GPL, as in its draft at gplv3.fsf.org, right?

Yes. I think that part of the GPLv3 is a good idea.

That said, I think they are still pushing the "you don't have any rights 
unless we give you additional rights explicitly" angle a bit too hard.

The fact is, people DO have rights, regardless of what the license says. 
We have them when it comes to music, and we have them when it comes to 
software. Copyright law only gives _limited_ rights to copyright holders, 
and we should actually fight those rights being expanded, instead of 
trying to expand on them ourselves.

> > No, the sane way to think about it is that linking just creates an 
> > "aggregate" work.
> 
> That's your take on it.  It does make sense, but claiming it's *the*
> sane way to think about it is making the mistake you accused the FSF
> of making.

I did point that out at the end of the email you quote. I said it's not 
necessarily the only way to look at things. But I GUARANTEE you that it 
makes more sense than the "no rights" approach, and I GUARANTEE you that 
it makes more sense than thinking that "ld is magic, and makes a derived 
work" approach.

> In fact, it can't possibly be exempt by this paragraph in clause 2 of
> the GPL:
> 
>   In addition, mere aggregation of another work not based on the
>   Program with the Program (or with a work based on the Program) on a
>   volume of a storage or distribution medium does not bring the other
>   work under the scope of this License.

This is actually a red herring. The way the GPLv2 _defines_ "work" and 
"Program" is by derived "derived work". 

You're confused by _your_ interpretation of "work" and "Program". You 
think that "Program" means "binary", because that's you think normally.

But the GPLv2 actually defines that "Program" is just the "derivative work 
under copyright law".

Really. Go look. It's right there at the very top, in section 0.

In other words, in the GPL, "Program" does NOT mean "binary". Never has.

And in fact, it wouldn't make sense if it did, since you can use the GPL 
for other things than just programs (and people have).

So you _always_ get back to the question: what is "derivative"? And the 
GPLv2 doesn't actually even say anything about that, but EXPLICITLY says 
that it is left to copyright law.

			Linus

Re: GPL only modules

[Alexandre Oliva]

On Dec 18, 2006, Linus Torvalds <torvalds@osdl.org> wrote:

> That said, I think they are still pushing the "you don't have any rights 
> unless we give you additional rights explicitly" angle a bit too hard.

Maybe it's just a matter of perception.  I don't see it that way from
the inside.

How about
http://gplv3.fsf.org/comments/rt/readsay.html?filename=gplv3-draft-2&id=2238

Would it help address your mis-perception?

> But I GUARANTEE you that it makes more sense than the "no rights"
> approach

Yeah, but that's a Straw Man.

> and I GUARANTEE you that it makes more sense than thinking that "ld
> is magic, and makes a derived work" approach.

I believe you and I have already shot down the 'ld-is-like-mkisofs'
argument.

>> In fact, it can't possibly be exempt by this paragraph in clause 2 of
>> the GPL:

>> In addition, mere aggregation of another work not based on the
>> Program with the Program (or with a work based on the Program) on a
>> volume of a storage or distribution medium does not bring the other
>> work under the scope of this License.

> This is actually a red herring. The way the GPLv2 _defines_ "work" and 
> "Program" is by derived "derived work". 

No, that's how it defines 'work based on the Program', see the quoted
portion below.

> You're confused by _your_ interpretation of "work" and "Program". You 
> think that "Program" means "binary", because that's you think normally.

I can't see where you drew that conclusion from, but it's an incorrect
conclusion.  Program can denote the sources as much as the binaries.

> But the GPLv2 actually defines that "Program" is just the "derivative work 
> under copyright law".

> Really. Go look. It's right there at the very top, in section 0.

/me looks again

  0. This License applies to any program or other work which contains
a notice placed by the copyright holder saying it may be distributed
under the terms of this General Public License.  The "Program", below,
refers to any such program or work, and a "work based on the Program"
means either the Program or any derivative work under copyright law:
that is to say, a work containing the Program or a portion of it,
either verbatim or with modifications and/or translated into another
language.  (Hereinafter, translation is included without limitation in
the term "modification".)

> In other words, in the GPL, "Program" does NOT mean "binary". Never has.

Agreed.  So what?  How does this relate with the point above?

The binary is a Program, as much as the sources are a Program.  Both
forms are subject to copyright law and to the license, in spite of
http://www.fsfla.org/?q=en/node/128#1

> And in fact, it wouldn't make sense if it did, since you can use the GPL 
> for other things than just programs (and people have).

People do many odd things.  How do you define source code and object
code to other things that are not programs.

> So you _always_ get back to the question: what is "derivative"? And the 
> GPLv2 doesn't actually even say anything about that, but EXPLICITLY says 
> that it is left to copyright law.

Exactly.  No disagreement here.

I'm not disputing this fact.

In the point you quoted above, I was only disputing your argument of
"mere aggregation" in the context of dynamic linking.

-- 
Alexandre Oliva         http://www.lsd.ic.unicamp.br/~oliva/
FSF Latin America Board Member         http://www.fsfla.org/
Red Hat Compiler Engineer   aoliva@{redhat.com, gcc.gnu.org}
Free Software Evangelist  oliva@{lsd.ic.unicamp.br, gnu.org}

Re: GPL only modules

[Linus Torvalds]

On Mon, 18 Dec 2006, Alexandre Oliva wrote:
>
> > In other words, in the GPL, "Program" does NOT mean "binary". Never has.
> 
> Agreed.  So what?  How does this relate with the point above?
> 
> The binary is a Program, as much as the sources are a Program.  Both
> forms are subject to copyright law and to the license, in spite of
> http://www.fsfla.org/?q=en/node/128#1

Here's how it relates:
 - if a program is not a "derived work" of the C library, then it's not 
   "the program" as defined by the GPLv2 AT ALL.

In other words, it doesn't matter ONE WHIT whether you use "ld --static" 
or "ld" or "mkisofs" - if the program isn't (by copyright law) derived 
from glibc, then EVEN IF glibc was under the GPLv2, it would IN NO WAY 
AFFECT THE RESULTING BINARY.

And I'm simply claiming that a binary doesn't become "derived from" by any 
action of linking.

Even if you link using "ld", even if it's static, the binary is not 
"derived from". It's an aggregate.

"Derivation" has nothing to do with "linking". Either it's derived or it 
is not, and "linking" simply doesn't matter. It doesn't matter whether 
it's static or dynamic. That's a detail that simply doesn't have anythign 
at all to do with "derivative work".

THAT is my point. 

Static vs dynamic matters for whether it's an AGGREGATE work. Clearly, 
static linking aggregates the library with the other program in the same 
binary. There's no question about that. And that _does_ have meaning from 
a copyright law angle, since if you don't have permission to ship 
aggregate works under the license, then you can't ship said binary. It's 
just a non-issue in the specific case of the GPLv2.

In the presense of dynamic linking the binary isn't even an aggregate 
work.

THAT is the difference between static and dynamic. A simple command line 
flag to the linker shouldn't really reasonably be considered to change 
"derivation" status.

Either something is derived, or it's not. If it's derived, "ld", 
"mkisofs", "putting them close together" or "shipping them on totally 
separate CD's" doesn't matter. It's still derived.

		Linus

Re: GPL only modules

[Dave Neuer]

On 12/18/06, D. Hazelton <dhazelton@enter.net> wrote:
>
> Ah, okay. However I'm quite sure that there are more ways to accomplish the
> tasks handled by the code in the header files (in most cases).

Well, that may be so. Unfortunately, Lexmark vs. Static Controls
actually says that even if there are other ways, if those ways are far
less optimal, the result is as if there were only one way. I think the
decision is part of one big, giant mess that is US IP law as it
relates to software.

Dave

RE: GPL only modules

[David Schwartz]

> Static vs dynamic matters for whether it's an AGGREGATE work. Clearly,
> static linking aggregates the library with the other program in the same
> binary. There's no question about that. And that _does_ have meaning from
> a copyright law angle, since if you don't have permission to ship
> aggregate works under the license, then you can't ship said binary. It's
> just a non-issue in the specific case of the GPLv2.

The right to ship aggregate works is not one specifically reserved by law to
the copyright holder. It's also not clear that an aggregate work is in fact
a single work for any legal purpose other than the aggregator's claim to
copyright. All you need to ship an aggregated work is the right to ship each
of the individual works aggregated in it. For GPL'd works, you get that
right from first sale, assuming you lawfully acquired the GPL'd work in the
first place.

If the aggregation is performed in an automated and mechanized way, the
aggregate is not a single work. It's still multiple works aggregated
together. For copyright law purposes, it is not a work because no creative
input was needed to produce it beyond what was used to create the works from
which it was formed.

I recently bought two DVDs as a present for a friend of mine. I put the two
DVDs in one box and shipped them to him. Just because the two DVDs are in
one box does not make them a derivative work for copyright purposes because
no creative input went in to them. I can even staple the two DVDs together
if I want. I also don't need any special permission to ship the two of them
together to my friend, first sale covers that. The right to ship each
individual work is all that's needed to ship the aggregate.

Now, if I wanted to write my own story with elements from the content of
both DVDs, that would be a derivative work because the combination itself is
done in a creative way.

No automated, mechanical process can create a derivative work of software.
(With a few exceptions not relevant here.)

DS

Re: GPL only modules

[Jeff V. Merkey]

Linus Torvalds wrote:

>On Mon, 18 Dec 2006, Alexandre Oliva wrote:
>  
>
>>>In other words, in the GPL, "Program" does NOT mean "binary". Never has.
>>>      
>>>
>>Agreed.  So what?  How does this relate with the point above?
>>
>>The binary is a Program, as much as the sources are a Program.  Both
>>forms are subject to copyright law and to the license, in spite of
>>http://www.fsfla.org/?q=en/node/128#1
>>    
>>
>
>Here's how it relates:
> - if a program is not a "derived work" of the C library, then it's not 
>   "the program" as defined by the GPLv2 AT ALL.
>
>In other words, it doesn't matter ONE WHIT whether you use "ld --static" 
>or "ld" or "mkisofs" - if the program isn't (by copyright law) derived 
>from glibc, then EVEN IF glibc was under the GPLv2, it would IN NO WAY 
>AFFECT THE RESULTING BINARY.
>
>And I'm simply claiming that a binary doesn't become "derived from" by any 
>action of linking.
>
>Even if you link using "ld", even if it's static, the binary is not 
>"derived from". It's an aggregate.
>
>"Derivation" has nothing to do with "linking". Either it's derived or it 
>is not, and "linking" simply doesn't matter. It doesn't matter whether 
>it's static or dynamic. That's a detail that simply doesn't have anythign 
>at all to do with "derivative work".
>
>THAT is my point. 
>
>Static vs dynamic matters for whether it's an AGGREGATE work. Clearly, 
>static linking aggregates the library with the other program in the same 
>binary. There's no question about that. And that _does_ have meaning from 
>a copyright law angle, since if you don't have permission to ship 
>aggregate works under the license, then you can't ship said binary. It's 
>just a non-issue in the specific case of the GPLv2.
>
>In the presense of dynamic linking the binary isn't even an aggregate 
>work.
>
>THAT is the difference between static and dynamic. A simple command line 
>flag to the linker shouldn't really reasonably be considered to change 
>"derivation" status.
>
>Either something is derived, or it's not. If it's derived, "ld", 
>"mkisofs", "putting them close together" or "shipping them on totally 
>separate CD's" doesn't matter. It's still derived.
>
>		Linus
>-
>To unsubscribe from this list: send the line "unsubscribe linux-kernel" in
>the body of a message to majordomo@vger.kernel.org
>More majordomo info at  http://vger.kernel.org/majordomo-info.html
>Please read the FAQ at  http://www.tux.org/lkml/
>
>  
>
Yep. We love you linus, keep going.

Also, we are taking over SCO's office space after the first of the year, 
since they have no one left. We will try to get that annoying eyesore of 
a sign taken off the building as soon as possible. They moved to 
Holliday, UT (or are moving there at present).

:-)

Jeff

Re: GPL only modules

[Christoph Hellwig]

On Mon, Dec 18, 2006 at 05:41:17PM -0200, Alexandre Oliva wrote:
> On Dec 17, 2006, Kyle Moffett <mrmacman_g4@mac.com> wrote:
> 
> > On the other hand, certain projects like OpenAFS, while not license- 
> > compatible, are certainly not derivative works.
> 
> Certainly a big chunk of OpenAFS might not be, just like a big chunk
> of other non-GPL drivers for Linux.
> 
> But what about the glue code?  Can that be defended as not a derived
> work, such that it doesn't have to be GPL?

Actually the OpenAFS kernel code almost 100% is a derived work of both
the original AFS codebase and Linux.  Just go and take a look at it,
there's shitloads of copy & paste and very deep poking into kernel internals.

Re: GPL only modules

[Scott Preece]

On 12/18/06, David Schwartz <davids@webmaster.com> wrote:
>
> > Static vs dynamic matters for whether it's an AGGREGATE work. Clearly,
> > static linking aggregates the library with the other program in the same
> > binary. There's no question about that. And that _does_ have meaning from
> > a copyright law angle, since if you don't have permission to ship
> > aggregate works under the license, then you can't ship said binary. It's
> > just a non-issue in the specific case of the GPLv2.
>
> The right to ship aggregate works is not one specifically reserved by law to
> the copyright holder.
---
Well, it's reserved to the authors of all the works in the aggregate,
possibly including the person doing the aggregation. And the author of
each of those works does have the right to limit your permission to
distribute in ways that might bar use in aggregations.
---
> It's also not clear that an aggregate work is in fact
> a single work for any legal purpose other than the aggregator's claim to
> copyright.
---

Not sure what you're trying to say there - what are we talking about
here other than the copyright?

---
> All you need to ship an aggregated work is the right to ship each
> of the individual works aggregated in it. For GPL'd works, you get that
> right from first sale, assuming you lawfully acquired the GPL'd work in the
> first place.
---

An aggregate work (the word used in the Copyright Act is either
"Compilation" or "Collective work", depending on the level of
creativity involved in forming it). In either case it is an
independent work. The person creating a Compilation has, at the least,
copyright in the organization of the material, plus copyright in any
original material she contributes. I agree, however, that all you need
to distribute tthe compilation is permission to distribute each of the
pieces in the given form (the author could have given you the right to
distribute only in conjunction with other specified works, for
instance) or placed other restrictions on the license.

First sale has nothing to do with this. First sale applies to the
redistribution or resale of copies you have purchased, not with the
right to make additional copies.

---
> ... For copyright law purposes, it is not a work because no creative
> input was needed to produce it beyond what was used to create the works from
> which it was formed.
---

Selection and organization are potentially creative. The Act
distinguishes between derivative works, compilations, and collective
works. A derivative work is a work "based on" the original work; a
compilation is a work formed by "collecting and assembling"
preexisting works "in such a way that the resulting work as a whole
constitutes an original work of authorship. A "collective work" is any
work formed by assembling independent works into a whole. All
compilations are collective works, but not all collective works are
compilations. Derivative works have nothing to do with aggregation.

---
> I recently bought two DVDs as a present for a friend of mine. I put the two
> DVDs in one box and shipped them to him. Just because the two DVDs are in
> one box does not make them a derivative work for copyright purposes because
> no creative input went in to them. I can even staple the two DVDs together
> if I want. I also don't need any special permission to ship the two of them
> together to my friend, first sale covers that. The right to ship each
> individual work is all that's needed to ship the aggregate.
---

First sale is separate from Copyright. You have the right to ship
them, but not to make copies of them. You can't for instance, ship
your friend a single DVD that combines the contents of the two you
bought. That's not unlike the distinction GPLv3 makes between
"propagating" and "conveying".

---
>
> Now, if I wanted to write my own story with elements from the content of
> both DVDs, that would be a derivative work because the combination itself is
> done in a creative way.
---

If it just rearranged the pieces, it would not be a derivative work,
it would be a compilation. If you transformed the pieces, it might be
a derivative work (depending on the nature of the transformation).

---
>
> No automated, mechanical process can create a derivative work of software.
> (With a few exceptions not relevant here.)
---

The truth of that statement depends on exactly what you mean by "an
automated, mechanical process". There are mechanical processs that
would simply produce the original work itself, not a derivative (e.g.,
changing the type from Courier to Times). There are other mechanical
proceses that would produce a collective work (e.g., inserting after
each line of the program a statement indicating whether or not it was
valid C). There are other mechanical processes that would create a
derivative work (e.g., a paraphrasing tool). It depends on the nature
of the mechanical process; that is, the decision, by you, to apply a
particular mechanical process is itself creative. But, perhaps that's
what you meant by your "few exceptions".

As always, IANAL,
scott

Re: GPL only modules

[Paul Mackerras]

Junio C Hamano writes:

> Excuse me, but are you two discussing "ld"? ;-)

Oops.  Yes. :)

Paul.

Re: GPL only modules

[Alexandre Oliva]

On Dec 18, 2006, Linus Torvalds <torvalds@osdl.org> wrote:

> On Mon, 18 Dec 2006, Alexandre Oliva wrote:

>> > In other words, in the GPL, "Program" does NOT mean "binary". Never has.

>> Agreed.  So what?  How does this relate with the point above?

> Here's how it relates:
>  - if a program is not a "derived work" of the C library, then it's not 
>    "the program" as defined by the GPLv2 AT ALL.

In the case I'm talking about, libgpl (make it a GPLed libc) is the
program, and a binary produced by linking anything else with the
program (libgpl) is what you claim to be an aggregate (a term not
defined in the GPL; is it defined in US law?).

For both static and dynamic linking, you might claim the output is an
aggregate, but that doesn't matter.  What matters is whether or not
the output is a work based on the program, and whether the "mere
aggregation" paragraph kicks in.

If the output is not an aggregate, which is quite likely to be
the case for dynamic linking, and quite possibly also for many static
linking cases, then the "mere aggregation" paragraph of clause 2 does
not kick in.

If the output is indeed an aggregate, as it may quite likely be in the
case of static linking, then the "mere aggregation" considerations of
clause 2 may kick in and enable the 'anything else' to not be brought
under the scope of the license.  You still need permission to
distribute the whole.  The GPL asserts its non-interference with your
ability to distribute the separate portion separately, under whatever
license you can, as long as it's not a derived work from the GPL
portion.

But what about the whole?  If you can't separate the whole into, well,
the separate components, is it still a mere aggregate?  mkisofs will
create an image in which the components are all there, easily
extractable individually in their original form.  This is *clearly*
mere aggregation, even if some components turn out to be works based
on other GPL programs.

But even in the case of static linking, this is not how it works.
Say, if the portions of the static libgpl to be copied to the output
are selected based on the contents of the 'anything else', could you
legitimately claim that the output is not a derived work of both
libgpl and this 'anything else', but rather a mere aggregation of
unrelated works?

In either case, if you distribute the linker output, and it happens to
be found to be a derived work of the program (libgpl), aggregate or
not, then you must license the whole of the linker output under the
GPL, and this means to me that you have to be able to provide the
source code of every portion thereof under the GPL, except for
portions explicitly excluded by the GPL itself.

So whether it's an aggregate or not is completely irrelevant.  What
matters is whether it's a derived work of a GPLed program (and if
there is copying, it probably is) and whether the mere aggregation
clause kicks in to grant an exception.

> THAT is the difference between static and dynamic. A simple command line 
> flag to the linker shouldn't really reasonably be considered to change 
> "derivation" status.

If in one case there is extraction, copying and transformation of the
GPLed intput, and in the other there is something much simpler (does
it still qualify as extraction, copying and transformation?), then
derivation becomes more or less obvious to prove, but you're right in
that the status of the output probably won't change.  The status of
the inputs certainly doesn't.

> Either something is derived, or it's not. If it's derived, "ld", 
> "mkisofs", "putting them close together" or "shipping them on totally 
> separate CD's" doesn't matter. It's still derived.

But the important questions at hand, I think, are what makes it
derived, and whether it qualifies for any of the exceptions in the
GPL.

-- 
Alexandre Oliva         http://www.lsd.ic.unicamp.br/~oliva/
FSF Latin America Board Member         http://www.fsfla.org/
Red Hat Compiler Engineer   aoliva@{redhat.com, gcc.gnu.org}
Free Software Evangelist  oliva@{lsd.ic.unicamp.br, gnu.org}

Re: GPL only modules

[Paul Mackerras]

Linus Torvalds writes:

> "Derivation" has nothing to do with "linking". Either it's derived or it 
> is not, and "linking" simply doesn't matter. It doesn't matter whether 
> it's static or dynamic. That's a detail that simply doesn't have anythign 
> at all to do with "derivative work".

There is in fact a pretty substantial non-technical difference between
static and dynamic linking.  If I create a binary by static linking
and I include some library, and I distribute that binary to someone
else, the recipient doesn't need to have a separate copy of the
library, because they get one in the binary.

If on the other hand the binary is dynamically linked, then the
recipient needs to get hold of a copy of the library from somewhere,
implying that they need to have satisfied whatever license conditions
the copyright owner of the library places on it, in order to have
obtained their copy of the library legally.

In other words, static linking gives the recipient a "free" copy of
the library, but dynamic linking doesn't.  That is why some companies'
legal guidelines have quite different rules about the distribution of
binaries, depending on whether they are statically or dynamically
linked.

If the library was a proprietary library, for which the copyright
owner wanted to charge a per-copy fee, the owner would no doubt object
to me distributing statically-linked binaries containing his library,
but could conceivably be perfectly happy with me distributing binaries
that have been dynamically linked against his library, since then
anyone who wants to use my binary has to purchase a copy of his
library from him.

So therefore I don't think you can reasonably claim that static
vs. dynamic linking is only a technical difference.  There are clearly
other differences when it comes to distribution of the resulting
binaries.

Paul.

Re: GPL only modules

[Linus Torvalds]

On Tue, 19 Dec 2006, Paul Mackerras wrote:
>
> There is in fact a pretty substantial non-technical difference between
> static and dynamic linking.  If I create a binary by static linking
> and I include some library, and I distribute that binary to someone
> else, the recipient doesn't need to have a separate copy of the
> library, because they get one in the binary.

I agree, and I do agree that it's a real difference. 

I personally think that it's the "aggregation" issue, not a "derivation" 
issue, but I'll freely admit that it's just my personal view of the 
situation.

> In other words, static linking gives the recipient a "free" copy of
> the library, but dynamic linking doesn't.  That is why some companies'
> legal guidelines have quite different rules about the distribution of
> binaries, depending on whether they are statically or dynamically
> linked.

Yes. There is not doubt at all that regardless of anything else, if you 
link statically, you at the VERY LEAST need to have the right to 
distribute the library as part of an "aggregate work". 

> So therefore I don't think you can reasonably claim that static
> vs. dynamic linking is only a technical difference.  There are clearly
> other differences when it comes to distribution of the resulting
> binaries.

Yes. And I have actually talked about this exact issue - even in the 
absense of any "derivation" from the library, the fact that static linking 
includes a _copy_ of the library does mean that you have to have the right 
to distribute that particular copy. 

Now, under the GPL, aggregate distribution is allowed, but you still do 
need to follow the other GPL rules (ie you would need to distributed 
sources for the library - even if you don't necessarily distribute sources 
to the binary you linked _with_).

So there's no question that "dynamic linking" simplifies issues, by virtue 
of not even distributing any library code at all. I absolutely agree about 
that part.

		Linus

Re: GPL only modules

[Paul Mackerras]

Linus Torvalds writes:
> 
> 
> On Tue, 19 Dec 2006, Paul Mackerras wrote:
> >
> > There is in fact a pretty substantial non-technical difference between
> > static and dynamic linking.  If I create a binary by static linking
> > and I include some library, and I distribute that binary to someone
> > else, the recipient doesn't need to have a separate copy of the
> > library, because they get one in the binary.
> 
> I agree, and I do agree that it's a real difference. 
> 
> I personally think that it's the "aggregation" issue, not a "derivation" 
> issue, but I'll freely admit that it's just my personal view of the 
> situation.

I think the critical issue is whether any human creativity is required
to establish derivation.

Clearly there is some modification and adaptation that ld does to a
library in the process of linking it into a binary, and ld is unlike
mkisofs or gzip in that you can't extract the library in its original
form (or any form suitable for linking with another program) from the
output of ld --static.

The question is whether it matters that the process that ld does is
mechanical in nature.  This is possibly an area where you'll get a
different answer in different jurisdictions.  I believe that in the
US, some creative input is required to establish copyright, whereas in
Australia, only "effort" is needed.  I don't know whether that affects
the definition of "derived work".

I personally would think that a mechanical process of modification
*does* create a derived work, but it would take a court of law or a
legislature to make an authoritative decision, I guess.

Paul.

RE: GPL only modules

[David Schwartz]

> > It's also not clear that an aggregate work is in fact
> > a single work for any legal purpose other than the aggregator's claim to
> > copyright.

> Not sure what you're trying to say there - what are we talking about
> here other than the copyright?

We are talking about two different possible copyright claims. One is the
person who aggregates the works who may try to claim a "compilation
copyright" in the aggregate. The other is the authors of the original works
who may try to claim that the aggregate is a derivative work.

> First sale has nothing to do with this. First sale applies to the
> redistribution or resale of copies you have purchased, not with the
> right to make additional copies.

First sale is exactly what this is about. Nobody needs to make "additional
copies" of the Linux kernel because I can download a thousand of them from a
computer operated by the guy in the office down the hall from me.


> > ... For copyright law purposes, it is not a work because no creative
> > input was needed to produce it beyond what was used to create
> > the works from
> > which it was formed.

> Selection and organization are potentially creative. The Act
> distinguishes between derivative works, compilations, and collective
> works. A derivative work is a work "based on" the original work; a
> compilation is a work formed by "collecting and assembling"
> preexisting works "in such a way that the resulting work as a whole
> constitutes an original work of authorship. A "collective work" is any
> work formed by assembling independent works into a whole. All
> compilations are collective works, but not all collective works are
> compilations. Derivative works have nothing to do with aggregation.

Good, so we agree that aggregate is not a derivative work. That means it
doesn't have to be GPL'd even if some of its component works are GPL'd.

> > I recently bought two DVDs as a present for a friend of mine. I
> > put the two
> > DVDs in one box and shipped them to him. Just because the two
> > DVDs are in
> > one box does not make them a derivative work for copyright
> > purposes because
> > no creative input went in to them. I can even staple the two
> > DVDs together
> > if I want. I also don't need any special permission to ship the
> > two of them
> > together to my friend, first sale covers that. The right to ship each
> > individual work is all that's needed to ship the aggregate.

> First sale is separate from Copyright. You have the right to ship
> them, but not to make copies of them. You can't for instance, ship
> your friend a single DVD that combines the contents of the two you
> bought. That's not unlike the distinction GPLv3 makes between
> "propagating" and "conveying".

I don't see why you can't distribute a single DVD that combines the contents
of the two you bought, so long as you destroy the originals. There is no
issue about the number of copies with the GPL because you can download any
number of copies of a GPL'd work from someone else who provides you with
source.

> > Now, if I wanted to write my own story with elements from the content of
> > both DVDs, that would be a derivative work because the
> > combination itself is
> > done in a creative way.

> If it just rearranged the pieces, it would not be a derivative work,
> it would be a compilation. If you transformed the pieces, it might be
> a derivative work (depending on the nature of the transformation).

I think it depends upon how small the pieces are. If you rearranged them
creatively, and the result was in effect a single work, I think it would be
a derivative work.

> > No automated, mechanical process can create a derivative work
> > of software.
> > (With a few exceptions not relevant here.)

> The truth of that statement depends on exactly what you mean by "an
> automated, mechanical process". There are mechanical processs that
> would simply produce the original work itself, not a derivative (e.g.,
> changing the type from Courier to Times). There are other mechanical
> proceses that would produce a collective work (e.g., inserting after
> each line of the program a statement indicating whether or not it was
> valid C). There are other mechanical processes that would create a
> derivative work (e.g., a paraphrasing tool). It depends on the nature
> of the mechanical process; that is, the decision, by you, to apply a
> particular mechanical process is itself creative. But, perhaps that's
> what you meant by your "few exceptions".

I mean that you can't link together a bunch of works that would otherwise be
independent and get a derivative work as a result. Linking combines
mechanistically, not creatively, so it aggregates.

DS

RE: GPL only modules

[David Schwartz]

> For both static and dynamic linking, you might claim the output is an
> aggregate, but that doesn't matter.  What matters is whether or not
> the output is a work based on the program, and whether the "mere
> aggregation" paragraph kicks in.
>
> If the output is not an aggregate, which is quite likely to be
> the case for dynamic linking, and quite possibly also for many static
> linking cases, then the "mere aggregation" paragraph of clause 2 does
> not kick in.
>
> If the output is indeed an aggregate, as it may quite likely be in the
> case of static linking, then the "mere aggregation" considerations of
> clause 2 may kick in and enable the 'anything else' to not be brought
> under the scope of the license.  You still need permission to
> distribute the whole.  The GPL asserts its non-interference with your
> ability to distribute the separate portion separately, under whatever
> license you can, as long as it's not a derived work from the GPL
> portion.

No!

It makes no difference whether the "mere aggregation" paragraph kicks in
because the "mere aggregation" paragraph is *explaining* the *law*. What
matters is what the law actually *says*.

We are talking about what works are within the GPL's scope. The text of the
GPL does not matter because the GPL does not set its own scope, copyright
law does.

The GPL could say that if you ever see the source code to a GPL'd work,
every work you ever write must be placed under the GPL. But that wouldn't
make it true, because that would be a requirement outside the GPL's scope.

We are talking about works are inside the GPL's legal scope, and in that
case, nothing the GPL says can enlarge the scope.

DS

RE: GPL only modules

[David Schwartz]

Combined responses:

> So therefore I don't think you can reasonably claim that static
> vs. dynamic linking is only a technical difference.  There are clearly
> other differences when it comes to distribution of the resulting
> binaries.

We're only talking about the special case of GPL'd works. You can download a
million copies of a GPL'd work from a server run by a family member across
the room. You can then delete one copy for each copy you distribute in the
form of a statically linked work.

Issues of copying don't apply to GPL'd works unless you have no access to
the source code. Otherwise, someone else can copy you as many works as you
want with the source code, and you can use first sale to transfer every one
of them.

> I personally would think that a mechanical process of modification
> *does* create a derived work, but it would take a court of law or a
> legislature to make an authoritative decision, I guess.

Under at least United States law, copyright protected creative expression
and only creative expression. In other jurisdictions, there are other types
of rights similar to copyright that one can obtain by means of hard work,
for example database compilation rights. They are usually legally distinct
from copyright and grant different rights with different rules.

DS

Re: GPL only modules

[D. Hazelton]

On Monday 18 December 2006 20:35, David Schwartz wrote:
> > For both static and dynamic linking, you might claim the output is an
> > aggregate, but that doesn't matter.  What matters is whether or not
> > the output is a work based on the program, and whether the "mere
> > aggregation" paragraph kicks in.
> >
> > If the output is not an aggregate, which is quite likely to be
> > the case for dynamic linking, and quite possibly also for many static
> > linking cases, then the "mere aggregation" paragraph of clause 2 does
> > not kick in.
> >
> > If the output is indeed an aggregate, as it may quite likely be in the
> > case of static linking, then the "mere aggregation" considerations of
> > clause 2 may kick in and enable the 'anything else' to not be brought
> > under the scope of the license.  You still need permission to
> > distribute the whole.  The GPL asserts its non-interference with your
> > ability to distribute the separate portion separately, under whatever
> > license you can, as long as it's not a derived work from the GPL
> > portion.
>
> No!
>
> It makes no difference whether the "mere aggregation" paragraph kicks in
> because the "mere aggregation" paragraph is *explaining* the *law*. What
> matters is what the law actually *says*.
>
> We are talking about what works are within the GPL's scope. The text of the
> GPL does not matter because the GPL does not set its own scope, copyright
> law does.
>
> The GPL could say that if you ever see the source code to a GPL'd work,
> every work you ever write must be placed under the GPL. But that wouldn't
> make it true, because that would be a requirement outside the GPL's scope.
>
> We are talking about works are inside the GPL's legal scope, and in that
> case, nothing the GPL says can enlarge the scope.
>
> DS


Actually, after rereading the GPLv2 because of this discussion I came to a 
most surprising conclusion. While there are *IMPLICIT* and *EXPLICIT* 
copyrights on the code, they have no bearing on the text of the GPL.

The GPL is a License that covers how the code may be used, modified and 
distributed. This is the reason that the FSF people had to make the big 
exception for Bison, because the parser skeleton is such an integral part of 
Bison (Bison itself, IIRC, uses the same skeleton, modified, as part of the 
program) that truthfully, any parser built using Bison is a derivative work 
of code released under the GPL.

That said, since there is a distribution, use and modification license on the 
Linux Kernel - the GPLv2 - there are those extra restrictions on the code 
*OUTSIDE* the copyright rules.

DRH

Re: GPL only modules

[D. Hazelton]

On Monday 18 December 2006 14:41, Alexandre Oliva wrote:
> On Dec 17, 2006, Kyle Moffett <mrmacman_g4@mac.com> wrote:
> > On the other hand, certain projects like OpenAFS, while not license-
> > compatible, are certainly not derivative works.
>
> Certainly a big chunk of OpenAFS might not be, just like a big chunk
> of other non-GPL drivers for Linux.
>
> But what about the glue code?  Can that be defended as not a derived
> work, such that it doesn't have to be GPL?

That has never been an issue, really. Its what 99% of the binary drivers 
believe - hence the reason that there is the user-compiled component to all 
of them.

> If not, can the whole containing both the non-derivative work and the
> source code providing the glue without which the whole wouldn't
> fulfill its intended purpose be regarded as a mere aggregate, and thus
> not be subject to the requirement that the whole be released under the
> GPL?

The view that binary vendors take is "Linking does not create a derived 
work" - regardless of the fact that you cannot have a complete compiled 
program or module *WITHOUT* that linking. However I have a feeling that the 
lawyers in the employ of the companies that ship BLOB drivers say that all 
they need to do to comply with the GPL is to ship the glue-code in source 
form.

And I have to admit that this does seem to comply with the GPL - to the 
letter, if not the spirit.

DRH

Re: GPL only modules

[Daniel Barkalow]

On Mon, 18 Dec 2006, Linus Torvalds wrote:

> Static vs dynamic matters for whether it's an AGGREGATE work. Clearly, 
> static linking aggregates the library with the other program in the same 
> binary. There's no question about that. And that _does_ have meaning from 
> a copyright law angle, since if you don't have permission to ship 
> aggregate works under the license, then you can't ship said binary. It's 
> just a non-issue in the specific case of the GPLv2.

Under US law, the distinction is between works that are copyrightable 
themselves as "derivative works" and works that are derived from others, 
but aren't copyrightable. Provided you're allowed to ship aggregate works, 
the question is whether the output of "ld" is a copyrightable work 
distinct from the inputs.

I'd agree that "ar", like "mkisofs", doesn't create a derived work, but I 
think that "objcopy" does create a derived work, and "ld" does too, by 
virtue of modifying the objects it takes to resolve symbols. Now, you 
could distribute to somebody an ar archive of your program, and the 
recipient (given fair use rights to the copy of the program they received) 
could do "gcc program.a -o program" to link it. But I don't think you 
automatically get the right (under the "mere aggregation" permission) to 
distribute the result of relocating the symbols of gnutls around those of 
your program and vice versa, along with modifying the references to 
external symbols from each of these to point to specific locations.

	-Daniel
*This .sig left intentionally blank*

Re: GPL only modules

[D. Hazelton]

On Monday 18 December 2006 12:16, David Schwartz wrote:
> Combined responses to save bandwidth and reduce the number of times people
> have to press "d".
>
> > Agreed. You missed the point.
>
> I don't understand how you could lead with "agreed" and then proceed to
> completely ignore the entire point I just made.

I *initially* thought you had missed the point. After your later post 
clarifying things I saw that my statement had been in error and that I did 
agree with you completely.

> > Since the Linux Kernel header files
> > contain a
> > chunk of the source code for the kernel in the form of the macros
> > for locking
> > et. al. then using the headers - including that code in your
> > module - makes
> > it a derivative work.
>
> No, it does not. The header files are purely function and not expressive in
> this case. Copyright only protects one choice among many equally-practical
> choices for expressing the same idea or performing the same function.

In this case, well. We aren't talking Copyright, but the license under which 
the software is distributed. According to the USPTO placing a statement such 
as (c) 2006 Pornrat Watanabe on a work you have created automatially places 
it under a copyright. The kernel source code, copyrighted as it is, is then 
distributed under the terms of the GNU GPL. 

Using the code from the header files may not make the module a derivative, but 
it is including parts of a copyrighted work. By *NOT* complying with the 
license under which said copyrighted work is distributed, you are giving up 
your rights under the license.

This doesn't negate any problems with people making Blob drivers, because, as 
you pointed out, under the same laws they aren't a derivative work, which 
means that that clause of the license doesn't apply. Now if the GPL contained 
a clause specifically defining what it considered a derivative work things 
would be different.

> > Actually, thinking about it, the way a Linux driver module works actually
> > seems to make *ANY* driver a derivative work, because they are
> > loaded into
> > the kernels memory space and cannot function without having that done.
>
> If every practical way of expressing an idea contains something, then that
> something is *not* protectable when used to express an idea of that kind.

Not what I was saying. There are any number of ways to make a driver 
function - the FUSE system has shown that clearly. But by making that driver 
one that is loaded directly into the kernels memory space...

It's that act that *I* *FEEL* makes it a derivative work.

> > *IF* the "Usermode Driver" interface that is being worked on ever proves
> > useful then, and only then, could you consider it *NOT* a
> > derivative work.
> > Because then the only thing it is using *IS* an interface, not complete
> > chunks of the source as generated when the pre-processor finishes running
> > through the file.
>
> No, you have it completely backwards.

No, you missed my point. I was saying that the Usermode Driver interface would 
make the current style of kernel modules fully derivative works. This being 
because they are using an open system interface and *NOT* including code 
distributed with the kernel.

> If a usermode driver interface was equally practical to develop a
> particular type of driver, then using the kernel headers would make the
> driver a derivative work. Because, in that case, the choice to use the
> kernel headers would be a creative choice -- one chosen method among many
> equally practical one.

And this is what I was saying. Perhaps I didn't state it in clear and concise 
english.

> Copyright only protects creative choices, not purely functional ones.
>
> "A Linux 2.6 driver for the ATI X800 graphics chipset" is an idea. If the
> only reasonably practical way to express that idea is with the Linux kernel
> header files, then using the Linux kernel header files is scenes a fair,
> not protected content.

Okay. I understood this back at the start of your reply.

<snip>
> DS

Okay, after a lot of thought and me realizing some mistakes I had made in 
interpreting the law and legal precedents I see we are on the same page.

DRH

Re: GPL only modules

[Giacomo A. Catenazzi]

Linus Torvalds wrote:
> 
> On Mon, 18 Dec 2006, Alexandre Oliva wrote:
>>> In other words, in the GPL, "Program" does NOT mean "binary". Never has.
>> Agreed.  So what?  How does this relate with the point above?
>>
>> The binary is a Program, as much as the sources are a Program.  Both
>> forms are subject to copyright law and to the license, in spite of
>> http://www.fsfla.org/?q=en/node/128#1
> 
> Here's how it relates:
>  - if a program is not a "derived work" of the C library, then it's not 
>    "the program" as defined by the GPLv2 AT ALL.
> 
> In other words, it doesn't matter ONE WHIT whether you use "ld --static" 
> or "ld" or "mkisofs" - if the program isn't (by copyright law) derived 
> from glibc, then EVEN IF glibc was under the GPLv2, it would IN NO WAY 
> AFFECT THE RESULTING BINARY.

I really don't agree.  It seems you confuse source and binary application.

The source surelly is not derived, you can link *any* libc to your
program.

But a binary is different.

Let start with your example about books: you write a book, you have
the copyright of the text, but if you publish it with X publiher, he
may use a own font.  You can read the book, scan it to extract text
(I hope fair use allows it), but not copy the book pages: there is
your text, but also copyrighted font.  Publisher should check
that the two license are compatible, as the user that links
with a new library.

For binary, it is the same. You can extract libraries and rest of
programs (better doing with sources), but until it is one binary,
it is a new mixed entity.

It is not only linking, it is mixing bytes! Some part of library is
linked statically, there are some references in the static part of
program. It is a mix and until the two part are mixed (not only linked)
you should follow both licenses for copying!

Choose any dynamic program in your machine, try to link glibc with an
other (not directly derived libc) library... you see how it is hard,
and it is very different to an "aggregation".  And dynamic links is
only the latest step of "merging" the two binaries.

Other libraries tend to be more "dynamic", but glibc mixes to much

In other word, source A, library B: the binary C is derived both from A
and B, but surelly A is not derived by B.  So IMHO IANAL, in arguments
we should not confuse the sources and the binary in the arguments, so
not calling simply "the program".


ciao
	cate


> 
> And I'm simply claiming that a binary doesn't become "derived from" by any 
> action of linking.
> 
> Even if you link using "ld", even if it's static, the binary is not 
> "derived from". It's an aggregate.
> 
> "Derivation" has nothing to do with "linking". Either it's derived or it 
> is not, and "linking" simply doesn't matter. It doesn't matter whether 
> it's static or dynamic. That's a detail that simply doesn't have anythign 
> at all to do with "derivative work".
> 
> THAT is my point. 
> 
> Static vs dynamic matters for whether it's an AGGREGATE work. Clearly, 
> static linking aggregates the library with the other program in the same 
> binary. There's no question about that. And that _does_ have meaning from 
> a copyright law angle, since if you don't have permission to ship 
> aggregate works under the license, then you can't ship said binary. It's 
> just a non-issue in the specific case of the GPLv2.
> 
> In the presense of dynamic linking the binary isn't even an aggregate 
> work.
> 
> THAT is the difference between static and dynamic. A simple command line 
> flag to the linker shouldn't really reasonably be considered to change 
> "derivation" status.
> 
> Either something is derived, or it's not. If it's derived, "ld", 
> "mkisofs", "putting them close together" or "shipping them on totally 
> separate CD's" doesn't matter. It's still derived.
> 
> 		Linus

Re: GPL only modules

[Giacomo A. Catenazzi]

Linus Torvalds wrote:
> 
> On Mon, 18 Dec 2006, Alexandre Oliva wrote:
>>> In other words, in the GPL, "Program" does NOT mean "binary". Never has.
>> Agreed.  So what?  How does this relate with the point above?
>>
>> The binary is a Program, as much as the sources are a Program.  Both
>> forms are subject to copyright law and to the license, in spite of
>> http://www.fsfla.org/?q=en/node/128#1
> 
> Here's how it relates:
>  - if a program is not a "derived work" of the C library, then it's not 
>    "the program" as defined by the GPLv2 AT ALL.
> 
> In other words, it doesn't matter ONE WHIT whether you use "ld --static" 
> or "ld" or "mkisofs" - if the program isn't (by copyright law) derived 
> from glibc, then EVEN IF glibc was under the GPLv2, it would IN NO WAY 
> AFFECT THE RESULTING BINARY.

I really don't agree.  It seems you confuse source and binary application.

The source surelly is not derived, you can link *any* libc to your
program.

But a binary is different.

Let start with your example about books: you write a book, you have
the copyright of the text, but if you publish it with X publiher, he
may use a own font.  You can read the book, scan it to extract text
(I hope fair use allows it), but not copy the book pages: there is
your text, but also copyrighted font.  Publisher should check
that the two license are compatible, as the user that links
with a new library.

For binary, it is the same. You can extract libraries and rest of
programs (better doing with sources), but until it is one binary,
it is a new mixed entity.

It is not only linking, it is mixing bytes! Some part of library is
linked statically, there are some references in the static part of
program. It is a mix and until the two part are mixed (not only linked)
you should follow both licenses for copying!

Choose any dynamic program in your machine, try to link glibc with an
other (not directly derived libc) library... you see how it is hard,
and it is very different to an "aggregation".  And dynamic links is
only the latest step of "merging" the two binaries.

Other libraries tend to be more "dynamic", but glibc mixes to much

In other word, source A, library B: the binary C is derived both from A
and B, but surelly A is not derived by B.  So IMHO IANAL, in arguments
we should not confuse the sources and the binary in the arguments, so
not calling simply "the program".


ciao
	cate


> 
> And I'm simply claiming that a binary doesn't become "derived from" by any 
> action of linking.
> 
> Even if you link using "ld", even if it's static, the binary is not 
> "derived from". It's an aggregate.
> 
> "Derivation" has nothing to do with "linking". Either it's derived or it 
> is not, and "linking" simply doesn't matter. It doesn't matter whether 
> it's static or dynamic. That's a detail that simply doesn't have anythign 
> at all to do with "derivative work".
> 
> THAT is my point. 
> 
> Static vs dynamic matters for whether it's an AGGREGATE work. Clearly, 
> static linking aggregates the library with the other program in the same 
> binary. There's no question about that. And that _does_ have meaning from 
> a copyright law angle, since if you don't have permission to ship 
> aggregate works under the license, then you can't ship said binary. It's 
> just a non-issue in the specific case of the GPLv2.
> 
> In the presense of dynamic linking the binary isn't even an aggregate 
> work.
> 
> THAT is the difference between static and dynamic. A simple command line 
> flag to the linker shouldn't really reasonably be considered to change 
> "derivation" status.
> 
> Either something is derived, or it's not. If it's derived, "ld", 
> "mkisofs", "putting them close together" or "shipping them on totally 
> separate CD's" doesn't matter. It's still derived.
> 
> 		Linus

Re: GPL only modules

[Sanjoy Mahajan]

Linus Torvalds wrote:
> That said, I think they are still pushing the "you don't have any
> rights unless we give you additional rights explicitly" angle a bit
> too hard.

>From section 2 (GPLv3, draft 2):

 This License acknowledges your rights of "fair use" or other
 equivalent, as provided by copyright law. 

By choosing 'acknowledges' as the verb, the licensee says explicitly
that fair-use rights are already yours, not that they are being given
to you.

-Sanjoy

`Never underestimate the evil of which men of power are capable.'
         --Bertrand Russell, _War Crimes in Vietnam_, chapter 1.

Re: GPL only modules

[Horst H. von Brand]

D. Hazelton <dhazelton@enter.net> wrote:

[...]

> The GPL is a License that covers how the code may be used, modified and 
> distributed. This is the reason that the FSF people had to make the big 
> exception for Bison, because the parser skeleton is such an integral part of 
> Bison (Bison itself, IIRC, uses the same skeleton, modified, as part of the 
> program) that truthfully, any parser built using Bison is a derivative work 
> of code released under the GPL.

They didn't "have to make the big exception", if Linus' view is correct:
The parser is built mechanically from the skeleton and the user's input, so
it is just an aggregation. Sure, it is best to make this clear (by the
exception), even if not needed.

> That said, since there is a distribution, use and modification license on
> the Linux Kernel - the GPLv2 - there are those extra restrictions on the
> code *OUTSIDE* the copyright rules.

A license like GPL works /inside/ copyright law, by allowing you to do
things the law prohibits unless the owner of the right agrees. What the law
allows explicitly, regardless of the owner's wishes, can't be taken away.
-- 
Dr. Horst H. von Brand                   User #22616 counter.li.org
Departamento de Informatica                    Fono: +56 32 2654431
Universidad Tecnica Federico Santa Maria             +56 32 2654239
Casilla 110-V, Valparaiso, Chile               Fax:  +56 32 2797513

Re: GPL only modules

[Horst H. von Brand]

Sanjoy Mahajan <sanjoy@mrao.cam.ac.uk> wrote:
> Linus Torvalds wrote:
> > That said, I think they are still pushing the "you don't have any
> > rights unless we give you additional rights explicitly" angle a bit
> > too hard.
> 
> From section 2 (GPLv3, draft 2):
> 
>  This License acknowledges your rights of "fair use" or other
>  equivalent, as provided by copyright law. 
> 
> By choosing 'acknowledges' as the verb, the licensee says explicitly
> that fair-use rights are already yours, not that they are being given
> to you.

Pure noise, a license can't take them away in any case.

[That is my pet pevee with GPL: It has a bit of legally binding text, and
 lots of "explanation" and "philosophy" that don't add anything but
 confusion. A clear-cut license plus an explanation/comment would have been
 better. IMHO, IANAL. HAND.]
-- 
Dr. Horst H. von Brand                   User #22616 counter.li.org
Departamento de Informatica                    Fono: +56 32 2654431
Universidad Tecnica Federico Santa Maria             +56 32 2654239
Casilla 110-V, Valparaiso, Chile               Fax:  +56 32 2797513

Re: GPL only modules

[David Lang]

On Tue, 19 Dec 2006, D. Hazelton wrote:

> This doesn't negate any problems with people making Blob drivers, because, as
> you pointed out, under the same laws they aren't a derivative work, which
> means that that clause of the license doesn't apply. Now if the GPL contained
> a clause specifically defining what it considered a derivative work things
> would be different.

incorrect, the GPL (or any other license) cannot define what is a derived work, 
the law does that. they could have a clause in them that said that something 
that is a derived work under the law is not considered a derived work by the 
author (implicitly giving unrestricted permission to that something), but you 
cannot define something that the law doesn't consider a derived work to be one 
in the license.

David Lang

Re: GPL only modules

[Scott Preece]

On 12/18/06, David Schwartz <davids@webmaster.com> wrote:
>
>
> > First sale has nothing to do with this. First sale applies to the
> > redistribution or resale of copies you have purchased, not with the
> > right to make additional copies.
>
> First sale is exactly what this is about. Nobody needs to make "additional
> copies" of the Linux kernel because I can download a thousand of them from a
> computer operated by the guy in the office down the hall from me.
---

This is an interesting argument that was new to me. However, it is not
clear at all that First Sale applies to intangible copies. And it's
not clear that there is a sale involved, legally. Again, IANAL, but I
think this is seriously untested ground.

scott

Re: GPL only modules

[Sanjoy Mahajan]

>> [GPL acknowledging fair-use rights]

> Pure noise, a license can't take them away in any case.

A bare license probably cannot take them away, since you haven't
agreed to anything.  But (1) that may not be true in all legal
systems, and (2) a contract-based license can take it away (e.g. an
NDA).  So the GPL's clarification is worthwhile.  For the same reason,
I'm guessing, the Creative Commons licenses have (also in section 2,
at least in v2.5):

   2. Fair Use Rights. Nothing in this license is intended to reduce,
   limit, or restrict any rights arising from fair use, first sale or
   other limitations on the exclusive rights of the copyright owner
   under copyright law or other applicable laws.

-Sanjoy

`Never underestimate the evil of which men of power are capable.'
         --Bertrand Russell, _War Crimes in Vietnam_, chapter 1.

Re: GPL only modules

[Alexandre Oliva]

On Dec 18, 2006, "David Schwartz" <davids@webmaster.com> wrote:

> No automated, mechanical process can create a derivative work of software.
> (With a few exceptions not relevant here.)

Can you explain what mechanisms are involved in copyright monopolies
over object code, then?
(there's a hint at http://www.fsfla.org/?q=en/node/128#1 )

-- 
Alexandre Oliva         http://www.lsd.ic.unicamp.br/~oliva/
FSF Latin America Board Member         http://www.fsfla.org/
Red Hat Compiler Engineer   aoliva@{redhat.com, gcc.gnu.org}
Free Software Evangelist  oliva@{lsd.ic.unicamp.br, gnu.org}

Re: GPL only modules

[Alexandre Oliva]

On Dec 18, 2006, "David Schwartz" <davids@webmaster.com> wrote:

> I don't see why you can't distribute a single DVD that combines the contents
> of the two you bought, so long as you destroy the originals.

Because, for example, per Brazilian law since 1998, fair use only
grants you the right to copy small portions of copyrighted works for
personal use.   http://www.petitiononline.com/netlivre

Remember that the GPL is not only about US copyright law or US
courts.

-- 
Alexandre Oliva         http://www.lsd.ic.unicamp.br/~oliva/
FSF Latin America Board Member         http://www.fsfla.org/
Red Hat Compiler Engineer   aoliva@{redhat.com, gcc.gnu.org}
Free Software Evangelist  oliva@{lsd.ic.unicamp.br, gnu.org}

Re: GPL only modules

[Alexandre Oliva]

On Dec 18, 2006, "David Schwartz" <davids@webmaster.com> wrote:

> It makes no difference whether the "mere aggregation" paragraph kicks in
> because the "mere aggregation" paragraph is *explaining* the *law*. What
> matters is what the law actually *says*.

You mean "mere aggregation" is defined in copyright law?  I don't
think so, otherwise the term 'aggregate' probably wouldn't have
been used in GPLv3.

AFAIK it's perfectly legitimate (even if immoral) for a copyright
license to prohibit the distribution of the software governed by the
license with anything else the author establishes.  E.g., some Java
virtual machine's license used to establish that you couldn't ship it
along with other implementations of Java that didn't pass some
comformance test.

Now, the GPL doesn't do this.  It doesn't say you can't distribute
GPLed software along with any other software.  It only says that, when
you distribute together works that don't constitute mere aggregation
(providing its own definition of mere aggregation), then the whole
must be licensed under the GPL.

> The GPL could say that if you ever see the source code to a GPL'd work,
> every work you ever write must be placed under the GPL. But that wouldn't
> make it true, because that would be a requirement outside the GPL's scope.

It is indeed possible that this would fall outside the scope of
copyright law in the US, and it would not be morally acceptable for
the GPL to impose such a condition.  But then, since nobody can be
forced to see the source code of a GPLed work, or any work for that
matter, acceptance is voluntary, and one shouldn't enter an agreement
one's not willing to abide by.

-- 
Alexandre Oliva         http://www.lsd.ic.unicamp.br/~oliva/
FSF Latin America Board Member         http://www.fsfla.org/
Red Hat Compiler Engineer   aoliva@{redhat.com, gcc.gnu.org}
Free Software Evangelist  oliva@{lsd.ic.unicamp.br, gnu.org}

Re: GPL only modules

[Alexandre Oliva]

On Dec 19, 2006, "D. Hazelton" <dhazelton@enter.net> wrote:

> However I have a feeling that the lawyers in the employ of the
> companies that ship BLOB drivers say that all they need to do to
> comply with the GPL is to ship the glue-code in source form.

> And I have to admit that this does seem to comply with the GPL - to the 
> letter, if not the spirit.

I don't see that it does comply even with the letter.  Consider this:

  These requirements apply to the modified work as a whole.  If
  identifiable sections of that work are not derived from the Program,
  and can be reasonably considered independent and separate works in
  themselves, then this License, and its terms, do not apply to those
  sections when you distribute them as separate works.  But when you
  distribute the same sections as part of a whole which is a work
  based on the Program, the distribution of the whole must be on the
  terms of this License, whose permissions for other licensees extend
  to the entire whole, and thus to each and every part regardless of
  who wrote it.

The work, in this case, is the GPLed glue code, in source form, and
the binary blob, without sources.  See that, even though the binary
blob is an independent and separate work in itself, and so it can
indeed be distributed separaly under a different license, when it's
distributed as part of a whole, then the whole must be on the terms of
the GPL.

So the question becomes whether the copyright holder of the glue code
bound by these GPL terms.

(a) If the glue code can be shown to be a derived work from Linux,
even in source form, then the copyright holder *is* bound by these
terms, and thus the whole could only be distributed under the GPL, so
including the binary blob would be in violation of the license.

(b) Now, if the glue code is *not* a derived work from Linux, then the
copyright holder is entitled to use whatever terms she likes.  It
could be any license whatsoever, that permits the distribution of the
whole or of the parts with whatever constraints copyright law
permitted.  Why would they choose the GPL in this case, then?


Let's assume they're not intentionally violating the GPL, but rather
that they believe they're entitled to do what they're doing, i.e.,
that they believe (a) their glue code is not a derived work from
Linux.

In this case, they *can* distribute the glue source code under the GPL
along with their binary blob.  But can anyone else?

Methinks anyone else would be entitled to pass the same whole along
under the GPL, per section 1, but wouldn't be entitled to distribute
modified versions, because this would require the derived work to be
licensed under the GPL, and nobody else is able to provide the source
code to the binary blob.

And then, who'd be entitled to complain?  Only the copyright holder of
the glue code and the binary blob.

Would you like to be on the wrong end of a copyright infringement
lawsuit by one of these binary blob distributors for distributing a
patched version of their glue code + binary blob?  More to the point,
do you think they would actually bring suit, just to make it clear
that the whole point is for them to keep a monopoly on the rights to
modify and then distribute the combined work, in spite of using the
GPL for (part of) the work?


It gets trickier for binaries, since they are quite possibly derived
works from the kernel, licensed under the GPL.  If they are, they
can't be distributed at all, not even by the copyright holder of the
glue code + binary blob.  If they aren't, then the copyright holder
can distribute them, but nobody else can because that would be a
violation of the GPL, as in the discussion above.  So, the copyright
holder would be keeping a monopoly on the rights to distribute
binaries, and anyone else could be sued by them.


Sure enough, one might think of praising them for distributing the
glue code under the GPL.  Then others could take this glue code and
use it for something else that is useful, right?

Well...  Not quite.  For one, even if enabling others to distribute
glue code + binary blobs were a good thing, using somebody else's glue
code means you're bound by the GPL requirements, so you can't ship the
combination of the glue code with your binary blob.

And then, if you intend to use the glue code to plug in some other
code that is GPL-compatible in the kernel, perhaps you'd be better off
not using the glue code at all, but rather modifying the
GPL-compatible code to fit.

So, even if condoning binary blobs were morally acceptable, we still
wouldn't be gaining anything from this relationship, we'd only be
enabling vendors to sell us their undocumented hardware while denying
us our freedoms.

Why should we do this?

-- 
Alexandre Oliva         http://www.lsd.ic.unicamp.br/~oliva/
FSF Latin America Board Member         http://www.fsfla.org/
Red Hat Compiler Engineer   aoliva@{redhat.com, gcc.gnu.org}
Free Software Evangelist  oliva@{lsd.ic.unicamp.br, gnu.org}

Re: GPL only modules

[Alexandre Oliva]

On Dec 19, 2006, "Horst H. von Brand" <vonbrand@inf.utfsm.cl> wrote:

> Sanjoy Mahajan <sanjoy@mrao.cam.ac.uk> wrote:

>> This License acknowledges your rights of "fair use" or other
>> equivalent, as provided by copyright law. 

>> By choosing 'acknowledges' as the verb, the licensee says explicitly
>> that fair-use rights are already yours, not that they are being given
>> to you.

> Pure noise, a license can't take them away in any case.

Yeah, that's merely informative, indeed.  Point is to ensure people
know their rights, while at the same time avoiding giving impressions
such the one Linus somehow got.

> [That is my pet pevee with GPL: It has a bit of legally binding text, and
>  lots of "explanation" and "philosophy" that don't add anything but
>  confusion. A clear-cut license plus an explanation/comment would have been
>  better. IMHO, IANAL. HAND.]

This bit would probably fit better in the spirit (preamble) than in
the letter.  That's why I filed the comment about it in the preamble.

-- 
Alexandre Oliva         http://www.lsd.ic.unicamp.br/~oliva/
FSF Latin America Board Member         http://www.fsfla.org/
Red Hat Compiler Engineer   aoliva@{redhat.com, gcc.gnu.org}
Free Software Evangelist  oliva@{lsd.ic.unicamp.br, gnu.org}

RE: GPL only modules

[David Schwartz]

Note: Combined responses.

> I'd agree that "ar", like "mkisofs", doesn't create a derived work, but I
> think that "objcopy" does create a derived work, and "ld" does too, by
> virtue of modifying the objects it takes to resolve symbols. Now, you
> could distribute to somebody an ar archive of your program, and the
> recipient (given fair use rights to the copy of the program they
> received)
> could do "gcc program.a -o program" to link it. But I don't think you
> automatically get the right (under the "mere aggregation" permission) to
> distribute the result of relocating the symbols of gnutls around those of
> your program and vice versa, along with modifying the references to
> external symbols from each of these to point to specific locations.

The question is, as a matter of copyright law, what right do you need to
distribute the aggregate? As I understand the law, the answer is that you
need the right to distribute each of the individual works in the aggregate.
Fortunately, you can trivially get the right to distribute any GPL'd work
under first sale. (Simply download as many copies as you plan to
distribute.)

To argue otherwise would be to argue that you can't buy a DVD and a Hallmark
card and ship the two of them together to your mother.

--

>This is an interesting argument that was new to me. However, it is not
>clear at all that First Sale applies to intangible copies. And it's
>not clear that there is a sale involved, legally. Again, IANAL, but I
>think this is seriously untested ground.

First sale has nothing do with a sale. 17 USC 109(a) says, "Notwithstanding
the provisions of section 106 (3), the owner of a particular copy or
phonorecord lawfully made under this title, or any person authorized by such
owner, is entitled, without the authority of the copyright owner, to sell or
otherwise dispose of the possession of that copy or phonorecord."

I think it's well settled law that everyone who lawfully acquires a copy of
a copyrighted work has the right to its normal expected use and may transfer
that right along with their copy to another without needing any special
permission from the copyright holder. Exceptions would include cases where
there was specific assent to a license, such as shrink-wrap, click-through,
or EULA.

I'm not really qualified to respond to the argument that first sale doesn't
apply to an intangible copy. As the law is written, it simply refers to the
owner of a "a particular copy". Sometimes "a copy" only means tangible
copies and sometimes it simply means the result of copying. It seems bizarre
to me, however, to argue that if I lawfully download a program, I need
special permission from the copyright holder to put it on CD but not a hard
drive. What is the *legal* difference? And if I put it no a hard drive, I
can't sell it? Seems crazy to me.

--

>AFAIK it's perfectly legitimate (even if immoral) for a copyright
>license to prohibit the distribution of the software governed by the
>license with anything else the author establishes.  E.g., some Java
>virtual machine's license used to establish that you couldn't ship it
>along with other implementations of Java that didn't pass some
>comformance test.

Nobody ever said a copyright holder couldn't restrict the distribution of
his software when such distribution is not authorized by things like fair
use, first sale, or other things. Of course a copyright holder can set any
rules he want for those distributions not authorized by law.

However, those restrictions do not affect those who did not agree to them.
For example, if I buy such a JVM and don't agree to the license (assuming I
don't have to agree to the license to lawfully acquire the JVM), I can give
it to a friend along with any other software I want.

--

>A bare license probably cannot take them away, since you haven't
>agreed to anything.  But (1) that may not be true in all legal
>systems, and (2) a contract-based license can take it away (e.g. an
>NDA).  So the GPL's clarification is worthwhile.  For the same reason,
>I'm guessing, the Creative Commons licenses have (also in section 2,
>at least in v2.5):

The clarification serves another important purpose as well. If some
provision is ambiguous and admits of two readins, one which conflicts with
fair use and would not be enforceable and one which doesn't that is, these
disclaimers make clear that the latter interpretation is the one that should
be chosen. So they may actually *increase* the scope of the license.

DS

Re: GPL only modules

[Scott Preece]

On 12/20/06, David Schwartz <davids@webmaster.com> wrote:

> > I'd agree that "ar", like "mkisofs", doesn't create a derived work, but I
> > think that "objcopy" does create a derived work, and "ld" does too, by
> > virtue of modifying the objects it takes to resolve symbols. ...
>
> The question is, as a matter of copyright law, what right do you need to
> distribute the aggregate? As I understand the law, the answer is that you
> need the right to distribute each of the individual works in the aggregate.
> Fortunately, you can trivially get the right to distribute any GPL'd work
> under first sale. (Simply download as many copies as you plan to
> distribute.)
>
> To argue otherwise would be to argue that you can't buy a DVD and a Hallmark
> card and ship the two of them together to your mother.
---

If the aggregate is not a derived work, then you only need the
separate permissions for the original works. If the aggregate is a
derived work, then you need permissions relative to the derived work,
not just the original work - essenitlally, permission to modify the
work. And, the permissions would all have to allow the specific form
of distribution and aggregation involved. [Don't give me back the
example of breaking the DVD in half - "the work" is not the medium;
your purchase of a DVD does not give you the right to modify the movie
it carries and redistribute the modified version, even under first
sale.]

---
>
> >This is an interesting argument that was new to me. However, it is not
> >clear at all that First Sale applies to intangible copies. And it's
> >not clear that there is a sale involved, legally. Again, IANAL, but I
> >think this is seriously untested ground.
>
> First sale has nothing do with a sale. 17 USC 109(a) says, "Notwithstanding
> the provisions of section 106 (3), the owner of a particular copy or
> phonorecord lawfully made under this title, or any person authorized by such
> owner, is entitled, without the authority of the copyright owner, to sell or
> otherwise dispose of the possession of that copy or phonorecord."
---

While I generally agree with you that first sale can occur without an
actual sale, the GPL (and distribution by free download in general) is
an odd situation (the law wasn't designed for works that could be
freely copied) and I would not suggest anyone depend on a court to
interpret that clause the way you are.

---
> I'm not really qualified to respond to the argument that first sale doesn't
> apply to an intangible copy. As the law is written, it simply refers to the
> owner of a "a particular copy". Sometimes "a copy" only means tangible
> copies and sometimes it simply means the result of copying. It seems bizarre
> to me, however, to argue that if I lawfully download a program, I need
> special permission from the copyright holder to put it on CD but not a hard
> drive. What is the *legal* difference? And if I put it no a hard drive, I
> can't sell it? Seems crazy to me.
---

Nevertheless, the only decided cases I could find in the area went the
other way - saying that intangible copies did not exhaust the author's
distribution rights. Note that your example is misleading - you don't
need different permission to put it on a CD than to put it on a hard
drive, but you might not have permission to distribute it (depending
on the terms under which you received it). There is case law finding
that, in at least some cases, the author's rights in particular copies
(even tangible copies) was not exhausted.

---
>
> Nobody ever said a copyright holder couldn't restrict the distribution of
> his software when such distribution is not authorized by things like fair
> use, first sale, or other things. Of course a copyright holder can set any
> rules he want for those distributions not authorized by law.
>
> However, those restrictions do not affect those who did not agree to them.
> For example, if I buy such a JVM and don't agree to the license (assuming I
> don't have to agree to the license to lawfully acquire the JVM), I can give
> it to a friend along with any other software I want.
---

No, as with the language in the GPL, your right to distribute is
provided by the license you received with the JVM, so if you don't
accept it, you can't distribute. However, the first sale doctrine
provides a limited exception; if you got the JVM through an
unrestricted sale, then you would normally have the right to sell that
particular copy without any further license (though possibly not to
someone in a different part of the world).

scott

RE: GPL only modules

[David Schwartz]

> > However, those restrictions do not affect those who did not
> > agree to them.
> > For example, if I buy such a JVM and don't agree to the license
> > (assuming I
> > don't have to agree to the license to lawfully acquire the
> > JVM), I can give
> > it to a friend along with any other software I want.

> No

Yes.

> as with the language in the GPL, your right to distribute is
> provided by the license you received with the JVM, so if you don't
> accept it, you can't distribute.

This is flat out self-contradiction. If my right is provided by the license,
then I can distribute. If I don't accept the license, then how is my right
to distribute provided by it?

The paragraph you are saying "No" to is completely correct and your response
is complete double-speak.

> However, the first sale doctrine
> provides a limited exception;

Exactly. So the idea that you can't distribute a work unless you agree to
its license is nonsense. With a license like the GPL, that is something that
is not a shrink-wrap, click-through, or EULA, the license does not apply to
anyone who does not agree to it. The GPL makes this totally clear in section
5.

If you don't accept the license, you simply don't get the additional rights
the license offers. You still have all the rights you originally had.

> if you got the JVM through an
> unrestricted sale, then you would normally have the right to sell that
> particular copy without any further license (though possibly not to
> someone in a different part of the world).

Your license to distribute is provided by the license if and only if you
agree to the license. Otherwise, it's as if the license doesn't exist. You
can get the right to distribute the work any other way that may be available
to you. First sale is just one example.

DS

Re: GPL only modules

[Scott Preece]

On 12/19/06, Alexandre Oliva <aoliva@redhat.com> wrote:
> On Dec 19, 2006, "D. Hazelton" <dhazelton@enter.net> wrote:
>
> > However I have a feeling that the lawyers in the employ of the
> > companies that ship BLOB drivers say that all they need to do to
> > comply with the GPL is to ship the glue-code in source form.
>
> > And I have to admit that this does seem to comply with the GPL - to the
> > letter, if not the spirit.
>
> I don't see that it does comply even with the letter.  Consider this:
>
>   These requirements apply to the modified work as a whole.  If
>   identifiable sections of that work are not derived from the Program,
>   and can be reasonably considered independent and separate works in
>   themselves, then this License, and its terms, do not apply to those
>   sections when you distribute them as separate works.  But when you
>   distribute the same sections as part of a whole which is a work
>   based on the Program, the distribution of the whole must be on the
>   terms of this License, whose permissions for other licensees extend
>   to the entire whole, and thus to each and every part regardless of
>   who wrote it.
>
> The work, in this case, is the GPLed glue code, in source form, and
> the binary blob, without sources.  See that, even though the binary
> blob is an independent and separate work in itself, and so it can
> indeed be distributed separaly under a different license, when it's
> distributed as part of a whole, then the whole must be on the terms of
> the GPL.
---

The question is what "the whole work" is. If the binary is not a
derived work, and is not prelinked with the work, then it seems likely
to be considered merely an aggregation, not requiring GPL licensing.
Note that there's some difficulty in the language, in that the GPL
uses "work based on the work" to mean something that it defines
specifically, while the Copyright Act defines "derived work" as "work
based on the work". THere is no equivalence there - The GPL's "work
based on the work" includes cases that do not fit the Act's
definition.

So, the GPL's requirement for licensing under the GPL clearly applies
to prelinked binaries, but it is not at all clear that it would apply
to a binary object, not derived from the kernel, shipped on the same
media. That is, the aggregation is NOT a modification of the original
work, it's just an aggregation (work of colective authorship).

---
> ...
> Let's assume they're not intentionally violating the GPL, but rather
> that they believe they're entitled to do what they're doing, i.e.,
> that they believe (a) their glue code is not a derived work from
> Linux.
>
> In this case, they *can* distribute the glue source code under the GPL
> along with their binary blob.  But can anyone else?
>
> Methinks anyone else would be entitled to pass the same whole along
> under the GPL, per section 1, but wouldn't be entitled to distribute
> modified versions, because this would require the derived work to be
> licensed under the GPL, and nobody else is able to provide the source
> code to the binary blob.
---

I'm confused here.  If the glue code is not a derived work, then they
don't need to use the GPL at all. If they DO ue the GPL, then (as you
note) if they didn't include the source code, nobody else could
redistribute it because nobody else would be able to meet the license
terms. I would expect that if they were going to GPL the glue code,
they would also provide the source for it.

---
>...
> Well...  Not quite.  For one, even if enabling others to distribute
> glue code + binary blobs were a good thing, using somebody else's glue
> code means you're bound by the GPL requirements, so you can't ship the
> combination of the glue code with your binary blob.
---

Only if you assume that using the glue code would make your blob a
derived work of the glue code. In many cases the point of the glue
code is to be an adapter between Linux and an existing interface. In
such a case, any binary blob using that interface would not be a
derived work of the glue code.

As before, though, if you linked the binary blob with the glue code
object, then the combined object probably would be a derived work and
have to conform to the GPL.

---
> ...
> So, even if condoning binary blobs were morally acceptable, we still
> wouldn't be gaining anything from this relationship, we'd only be
> enabling vendors to sell us their undocumented hardware while denying
> us our freedoms.
>
> Why should we do this?
---

To enable the use of the hardware in Linux systems? Most people would
prefer well-documented hardware with free drivers, but when that isn't
available, many people might still like to be able to use the
hardware. It's less than ideal, but so is having no way at all to use
the hardware.

scott

Re: GPL only modules

[Eric W. Biederman]

Jan Engelhardt <jengelh@linux01.gwdg.de> writes:

> On Dec 14 2006 09:52, Chris Wedgwood wrote:
>>On Thu, Dec 14, 2006 at 05:38:27PM +0000, Christoph Hellwig wrote:
>>
>>> Yes, EXPORT_SYMBOL_INTERNAL would make a lot more sense.
>>
>>A quick grep shows that changing this now would require updating
>>nearly 1900 instances, so patches to do this would be pretty large and
>>disruptive (though we could support both during a transition and
>>migrate them over time).
>
> I'd prefer to do it at once. But that's not my decision so you anyway do what
> you want.
>
> That said, I would like to keep EXPORT_SYMBOL_GPL, because EXPORT and INTERNAL
> is somehow contrary. Just a wording issue.

I would suggest that we make the prefix MODULE and not EXPORT.  It
more accurately conveys what we are trying to say, and it doesn't
have the conflicting problem with INTERNAL.

I don't know if it is actually worth doing a great rename for such
a simple clarification in language.  But it is worth considering
because it would more strongly convey that we don't expect these
symbols to be used by everything.

Eric

Re: GPL only modules

[Alexandre Oliva]

On Dec 14, 2006, "Jeff V. Merkey" <jmerkey@wolfmountaingroup.com> wrote:

> FREE implies a transfer of ownsership

It's about freedom, not price.  And even then, it's the license that
has not cost, not the copyright.

> and you also have to contend with the Doctrine of Estoppel.  i.e. if
> someone has been using the code for over two years, and you have not
> brought a cause of action, you are BARRED from doing so under the
> Doctrine of Estoppel and statute of limitations.

Sure, but we're not necessarily talking about code that is two years
old.  We're talking about future releases.  Then, if someone
interfaces with code that was already there before, they might claim
they're still entitled to do so.  But if it's new code they interface
with, or new code they wrote after this clarification is published,
would they still be entitled to estoppel?  FWIW, IANAL.

-- 
Alexandre Oliva         http://www.lsd.ic.unicamp.br/~oliva/
FSF Latin America Board Member         http://www.fsfla.org/
Red Hat Compiler Engineer   aoliva@{redhat.com, gcc.gnu.org}
Free Software Evangelist  oliva@{lsd.ic.unicamp.br, gnu.org}