Please read the enclosure from Chris at kororaa.org.
Or go to his site at :
www.kororaa.org
and see what you think of the response Chis had to his required Clarification.
Gerald
Title: Kororaa Project
Thursday, June 15, 2006, 04:45
This is a reply from the Free Software Foundation to the questions I asked in reply to the original email from them (if you didn't see the original email from the FSF, you can find it
here).
In essence, the FSF stand by their opinion that the nVidia and ATI drivers (and binary modules in general)
DO violate GPL license.
There seem to be a few contradictions to me, but it's here in its entirety so have a read for yourself (it's not very long) and let us know what you think!
Once again, I've tried to make the formatting readable.
NOTE:
The italicised text with "> >" are from the original FSF email against which I have asked my questions;
bold text with ">" are my said questions as posed in the
last email;
the clear italicised text is the new reply from FSF.
Dear Chris
I apologize for the delay in getting back to you. Your questions
generated some discussion over here, and I wanted to make sure we got you the best possible answers.
> I have some questions below I am hoping you, or someone, can
> answer for me so that I can get some clearer understanding as
> to why they are a violation.
I've addressed your questions as best I can below. Please feel free to reproduce in full any e-mail that I send you. I ask that you please don't just quote specific portions of the mail, or omit any parts; the context goes a long way to prevent confusion.
> > We believe that kernel modules are derivative works of Linux.
> Can you explain WHY you believe the kernel modules are
> derivative works of Linux? What actually makes them a derivative work?
The term "derivative work" is defined in copyright legislation, including all the relevant case law. Put generally, one piece of software is a derivative work of another if the first is combined with the second to provide some functionality. This is true even if the functionality is optional or not commonly used. For example, if a program uses readline to provide support for rich command editing, it's a derivative work of readline.
Note that this does require a dependency on a *specific* piece of
code, instead of on software that performs a particular function. A wide variety of programs run on systems with the Linux kernel, but they're not all derivative works of Linux: most simply require that the kernel recognize certain system calls, which is more about functionality than particular code. Likewise, web browsers have the capability to interact with web servers, but this does not make the browser a derivative work of any particular server.
There is admittedly a fuzzy line here; in close cases, deciding
whether one work is a derivative of another is a judgment call, which is why we have courts. But let me be very clear about this: it is impossible to write a kernel module for Linux that isn't a derivative work of Linux. Even if we assume that all these proprietary drivers shun Linux's implementations of common data structures, perform their own memory management, and so on, they still have to register themselves as modules. To do that, they have to use code in the kernel to call functions like module_init(), and that's enough to make the software a derivative work of Linux. The argument in the kerneltrap
link you provided that these modules make "no Linux specific calls" is absurd on its face: if they made no Linux-specific calls, they wouldn't be kernel modules.
> >If there weren't any special licensing considerations for
> > Linux, we would say that those modules must adhere to the
> > requirements set forth in the GPL.
> So is this due to your understanding that they ARE
> derivative works, and therefore also have to be GPL?
That's correct.
> > In particular, this means that they, too, would be licensed under the
> > GPL, and users would be able to obtain source when the work
> > is distributed in binary form. In such a case, if there were binary-only
> > modules, we would say they were violating Linux's license, along with
> > anybody who was distributing them.
> Would you be able explain why a binary-only module violates the license?
Because such a module is a derivative work, it's subject to the terms in section 2 of the GNU GPL. Again, if there were no special licensing considerations for Linux, binary-only modules would clearly violate section 2(b) of the license.
> > Some kernel developers apparently agree with him. Others do not: I
> > was at OSCon last year, and I saw Greg Kroah-Hartman give a quick
> > presentation about kernel development where he flatly stated that
> > binary modules are illegal.
> Is this presentation available?
He doesn't really elaborate on this issue in the presentation, but slides are available at
<http://www.kroah.com/linux/talks/oscon_2005_state_of_the_kernel/>; in particular, see the bottom of <http://www.kroah.com/linux/talks/oscon_2005_state_of_the_kernel/mgp00038.html>.
> >It's not clear whether or not Linus' relaxed restrictions are
> > meant to apply to the entire Linux kernel, or just his contributions to
> > it.
> I would assume that he cannot speak for the copyright of code owned by
> other developers.
That's my understanding as well.
> But perhaps he does have some sort of overriding power because
> "Linux" is his trademark, I don't know.
To the best of my knowledge, this would not give him any special standing. I would expect an argument along the lines of: "Contributors provided code to Linux when it had this license exception, and so it's reasonable to assume that they assented to licensing their code with this exception as well if they didn't say otherwise." Like I said, I think that's a poor argument, and I hope a court would agree, but it probably wouldn't be dismissed out of hand.
Instead, we believe that, absent other arrangements, interactions
between developers are governed by the license provided in the code being written. Under those terms, every programmer who writes a patch is a licensee of everyone else, and every maintaner who merges that patch is a licensee of the patch author. For most code in Linux, that's the plain GPL, with no exceptions.
> Even if he disagrees on behalf of
> "Linux" I think that individual developers have the right to enforce
> their own copyright. Of course it would have to be a part
> against which the violation is occurring.
> Surely iptables cannot lay claim to a violation from
> a video driver if it has nothing to do with his code?
I'm reluctant to give your question a simple yes or no answer, because copyright law sets a standard for "nothing to do with his code" that's probably stricter than you think. To keep things simple, let's assume for the purposes of this discussion that Linux is under the GPL without any exceptions.
If you distribute a kernel that includes iptables, and makes use of proprietary video drivers, the iptables developers could likely take action against you. This is because you've distributed a derivative work in violation of section 2 of the GPL -- since again, the whole combination isn't being released under the GPL.
The iptables developers may be able to take action against ATI and nVidia directly as well, even if their modules don't have any
relationship with iptables itself, by claiming it's contributory
infringement. It's against the law to provide material contribution to activity that you know will infringe copyright. It's possible that these companies are doing both: the way they distribute their modules makes it easy to violate the GPL (which infringes the work's copyright), and it seems like they must know this is happening, since expressly allow other parties to distribute their work verbatim.
> > It also means that for a program with many copyright holders, like
> > Linux, it's at least conceivable that any single one of them could hold
> > you accountable for license violations, and that they may not intend
> > for their work to have exceptions in the GPL's requirements,
> > like Linus apparently does.
> Surely they can only lay claim to a violation if it is against their
> code?
> But I guess it needs some clarification on the copyright of Linux as a
> whole, and whether one single piece of code entitles that author to have
> copyright on the entire Linux code.
It does not.
I hope these clarifications help you understand our reasoning better.
Again, this is not legal advice. If you still have concerns, I'd be
happy to address those; just let me know.
Best regards,
--
Brett Smith
Free Software Foundation Licensing Team
Linux Australia Interview 2 - Podcast
Tuesday, June 13, 2006, 02:24
The second part of the interview with James from Linux Australia is available for anyone interested.
Episode 24:
("Chris Smart from the Kororaa project about his adventures in the land of GPL; Noven from South Australia about how he uses FOSS to help remote indigenous communities; and Rusty Russell, IP Policy Advisor for Linux Australia, about the new petition Linux Australia has launched calling on the federal government to "Ban Piracy, Not Competition")
OGG;
MP3.
Enjoy!
Chris
Friday, June 2, 2006, 06:42
No-one is probably interested in this anymore, however if anyone out there is curious (like me) then here's an update!
I received a reply from the Free Software Foundation in regards to the GPL issue.
However because I have not heard back since my reply, I thought I may as well post my reply back to FSF so you can read both. It will be hard to read, but the lines with ">" are the original FSF email (bolded), and the other text is my reply to them (italicised).
In essence, FSF believes that the drivers ARE a violation but that there are special considerations for Linux. Once again, no actual evidence was provided, so I replied asking for some :)
I have also emailed the original kernel developer who contacted me to ask him primarily for two things:
1) Evidence to support his claim
2) What part of the kernel is under his copyright that it is violating
I have not heard back yet, but hope to soon.
Here's the FSF email:
> Dear Chris,
Hi [name taken out],
Thank you very much for taking the time to get back to me.
I have some questions below I am hoping you, or someone, can answer for me so that I can get some clearer understanding as to why they are a violation.
> I'm very glad to see that you're taking licensing issues seriously, and
> I understand your frustration at getting clear answers in this regard.
> It's unfortunate that legal housekeeping can do so much to hinder good
> development work.
It sure can :) But I do want to make sure that I am doing the right thing.
> Let me address some of your concerns as they regard the GNU GPL
> generally. Later, I'll discuss some complications that are specific to
> Linux -- I'm afraid they make it impossible to provide you with a
> definitive answer to your questions.
OK
> We believe that kernel modules are derivative works of Linux.
Can you explain WHY you believe the kernel modules are derivative works of Linux? What actually makes them a derivative work?
>If there
> weren't any special licensing considerations for Linux, we would say
> that those modules must adhere to the requirements set forth in the GPL.
So is this due to your understanding that they ARE derivative works, and therefore also have to be GPL? I would certainly agree that if they ARE derivative works then they need to be under the GPL too.
> In particular, this means that they, too, would be licensed under the
> GPL, and users would be able to obtain source when the work is
> distributed in binary form. In such a case, if there were binary-only
> modules, we would say they were violating Linux's license, along with
> anybody who was distributing them.
Would you be able explain why a binary-only module violates the license? Or is this assuming that the binary modules are a derivative work (and therefore linked to the question above?).
> Unfortunately, there are special considerations for Linux that muddy the
> waters. Linus Torvalds has made statements which suggest that, for
> whatever reason, he does not believe that modules which use certain
> kernel interfaces are subject to the GPL's requirements.
I believe this is because the drivers were not specifically written for Linux, and make no Linux specific calls (http://kerneltrap.org/node/1735).
> Some kernel
> developers apparently agree with him. Others do not: I was at OSCon
> last year, and I saw Greg Kroah-Hartman give a quick presentation about
> kernel development where he flatly stated that binary modules are
> illegal.
Is this presentation available? I'd love to understand why he says the binary modules are illegal. Everyone has a point of view, but I want to know the reasons why, and am after actual evidence.
>It's not clear whether or not Linus' relaxed restrictions are
> meant to apply to the entire Linux kernel, or just his contributions to
> it.
I would assume that he cannot speak for the copyright of code owned by other developers. But perhaps he does have some sort of overriding power because "Linux" is his trademark, I don't know. Even if he disagrees on behalf of "Linux" I think that individual developers have the right to enforce their own copyright. Of course it would have to be a part against which the violation is occurring. Surely iptables cannot lay claim to a violation from a video driver if it has nothing to do with his code?
>Many people would like clarification in this area, but the
kernel
> developers seem intent on leaving things fuzzy for now. It generally
> seems like they're moving towards prohibiting binary modules, however.
Whether they want to prohibit binary modules or not is up to them I guess, I'm merely interested in a GPL violation. If it's a binary module or not, I'm just interested in HOW the module violates the license.
> As we discuss at
> <http://www.gnu.org/licenses/gpl-faq.html#WhoHasThePower>, when a
> program is GPLed, one who its copyright holder is the can enforce the
> license. This means that if the copyright holder wants to provide
> exceptions to the GPL's terms, they can do that, and it can be legally
> binding. So statements like Linus' have the potential to provide
> developers with permissions they may not have had otherwise.
Thanks for that information. I guess it comes down to how much authority Linus himself has over the entire kernel. If the modules violate the GPL using a part of HIS code, and he has excused it, then I guess that's ok. Strange.
> It also means that for a program with many copyright holders, like
> Linux, it's at least conceivable that any single one of them could hold
> you accountable for license violations, and that they may not intend for
> their work to have exceptions in the GPL's requirements, like Linus
> apparently does.
Surely they can only lay claim to a violation if it is against their code? But I guess it needs some clarification on the copyright of Linux as a whole, and whether one single piece of code entitles that author to have copyright on the entire Linux code. If that is the case, there is bound to be lots of conflicts. If it comes down to whoever has the copyright on a particular piece of code, that might be easier. Who would know the answer to such an issue?
> As such, the kernel developer who wrote to you may be
> within his rights to request that you stop distributing a kernel that
> uses binary modules. It's undeniable that the safest course of action
> for you, as far as license compliance is concerned, is to avoid using
> kernel modules that don't comply with the terms of the plain GPL.
But this is exactly the problem. I need to know whether they indeed DO or DON'T comply. Someone's word that they do cannot hold, there must be evidence. So how do I know that they don't comply with the terms of the plain GPL?
> If
> you can get all the kernel developers to say that you're allowed to
> distribute the work with binary modules, then you're in the clear, but I
> don't think you'll get that.
Sure :) and I'm not even interested. If it is a violation then I won't release another, and I won't seek permission, and I won't try and find a way around it.
> I cannot explain why this developer has not gone after other
> distributors that include binary modules, or after ATI and nVidia
> directly. You would have to ask him yourself. However, legally
> speaking, he is allowed to be as selective as he likes in his copyright
> enforcement, even if it seems like he's choosing poor targets. Perhaps
> he's trying to establish precedent to get the attention of larger
> organizations.
Yes, this is true. No questions he has the right to lay claim to a violation if he is indeed a copyright holder of the Linux kernel. His motives, I'm not quite sure, but I have appreciated him letting me know.
> I hope this at least explains the situation coherently for you, even if
> it doesn't provide any easy answers. Of course, if you still have
> questions or other concerns, don't hesitate to contact me. Please note
> that this is not legal advice. If you need legal advice, please consult
> a lawyer.
Sure, I understand that is it not legal advice. I would appreciate some information / explanation as to WHY the drivers violate the GPL. At this stage everyone seems to have an opinion, but no real evidence. If I can get that, then I can understand and see why it does violate the GPL. Until such a time it is hearsay.
Looking forward to receiving some more information. Thank you very much for your time!
Kind regards,
Chris Smart
Linux Australia Interviews - Podcast
Tuesday, May 30, 2006, 04:00
I have been interviewed for Linux Australia Podcast (episode 23) in regards to the GPL violation issue.
Which made me realise that I forgot to mention that I was also interviewed for the Linux Australia Podcast episode 22, for the Kororaa project in general. The episode 22 interview was done almost 2 months ago (long before the GPL issues), but published much later on the 13th May.
If you would like to listen to the podcasts they are available here:
Episode 22:
(Kororaa Project and Donna Benjamin from Melbourne about the Melbourne bid for LCA 2008)
OGG;
MP3.
Episode 23:
(Matt Ebb, a lead artist on the recently released Open Source short film "Elephants Dream" and Kororaa GPL issue)
OGG;
MP3.
Enjoy!
Chris
Thursday, May 25, 2006, 06:46
Just a little update to say that on Tuesday 23rd May I contacted the Free Software Foundation asking for their official stance on this issue.
So far I haven't heard anything except the ticket number allocated to the request, but I will provide an update as soon as I hear from them.
Chris
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