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Linux: the GPL and Binary Modules
An anonymous reader writes "When first made available in September of 1991, the Linux kernel source code was released under a very restrictive non-GPL license requiring that the source code must always be available, and that no money could be made off of it. Several months later Linus changed the copyright to the GPL, or GNU General Public License, under which the kernel source code has remained ever since. Thanks to the GPL, any source code derived from the Linux kernel source code must also be freely released under the GPL. This has led many to question the legality of 'binary only' kernel modules, for which no source code is released. Linux creator Linus Torvalds talks about this issue in a recent thread on the lkml."
Several issues need to be more clearly defined before the forest is seen for the trees.
The phrase "Her bosom heaved..." can probably be found in 152,234 fictional books. If I add a few more words, it becomes a sentence and can probably be found in 1,289 books.
Derivation means you take the original work which has some 'body' of substance and add or subtract to it. Using less than that results in an excerpt. We know that excerpts can be used all over the place. There is also a difference in whether the material is 'instructional' in nature. Significantly more leeway is given. The kernel and associates aren't 'instructional'.
Simply including one line of a system or function call will not make a work a derivation. Including a file (or, even if not a 'file') of substantial body will make a work derivative. Two people writing a play may write separate acts which are then combined and published. Their final work is not one derived from another, but a shared work - joint equal ownership. If they individually copyright their own 'act', the joining would be derivative - the former not.
Binary code is a derivative work. It could not have occurred without the source file. But is it a copyright derivative? Colorization of B&W films results in new copyright, but also contains information for the 'source' that is identifiable. Binary code doesn't except for strings which might appear.
If I use a proprietary compiler on a GPL code, I get a binary. In one sense, it's derivative. In another, it's not. If I create my own scrambler, and process the novel Gone with the Wind text, is that new work a copyright derivative? I think not. This may even imply that using a GPL compiler on GPL source may result in a work that is -not- GPL because it could only be created via the creators unique use of the tools.
Joining a transmission to a motor will not result in copyright infringment over either the motor or tranmission, without regard that they have complex connectivity, assuming there were only separate copyrights beforehand. Patents aren't an issue either provided there is one for the motor and one for the transmission.
Whoever put the two together can sell it or use it as they wish.
Titles cannot be copyrighted. For more protection over things like system or function calls which may be specific to Linux, it may be necessary to do more legal legwork. For example, it may be necessary to assign a trademark to the function one-liner. Overkill? Not in todays legal world. Perhaps a GPL for trademarks used in Linux will become necessary.
I agree with you 100%, but... I can see a fairly good business reason for a company not to want to release their driver as Free software. Imagine you are FooCard manufacturer. Your FooCard uses the BarChip and is basically built to the BarChip company's reference board design. You write a driver for it and put a check in the init code to look for your card's special signature and abort if that isn't present. If the driver is Free, your competitors (also building cards using BarChip's reference board design) will just hack the signature part and, voila! they have full Linux support too. If you keep the source closed (and proprietary, no license) they have no driver (and can't use yours because of the signature check) so they have no Linux support and you have a competitive advantage.
No - GPL is about copying and modifying code (and distribution). If you wrote module from scratch - all the code is yours and you are free to put it under any license you want. Well, especially if you do not use even Linux's header files ;).
In GPL word "derived" applies only to copied or modified program. You can't say it derived just because you intended to use it with Linux kernel first.