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    SubjectRE: [PATCH] USB: mark USB drivers as being GPL only

    Marcel Holtmann wrote:

    > Lets phrase this in better words as Valdis pointed out: You can't
    > distribute an application (binary or source form) under anything else
    > than GPL if it uses a GPL library.

    This simply cannot be correct. The only way it could be true is if the work
    was a derivative work of a GPL'd work. There is no other way it could become
    subject to the GPL.

    So this argument reduces to -- any work that uses a library is a derivative
    work of that library. But this is clearly wrong. For work X to be a
    derivative work of work Y, it must contain substantial protected expression
    from work Y, but an application need not have any expression from the
    libraries it uses.

    > It makes no difference if you
    > distribute the GPL library with it or not.

    If you do not distribute the GPL library, the library is simply being used
    in the intended, ordinary way. You do not need to agree to, nor can you
    violate, the GPL simply by using a work in its ordinary intended way.

    If the application contains insufficient copyrightable expression from the
    library to be considered a derivative work (and purely functional things do
    not count), then it cannot be a derivative work. The library is not being
    copied or distributed. So how can its copyright be infringed?

    > But hey (again), feel free to disagree with me here.

    This argument has no basis in law or common sense. It's completely

    And to Pekka Enberg:

    >It doesn't matter how "hard" it was to write that code. What matters
    >is whether your code requires enough copyrighted aspects of the
    >original work to constitute as derived work. There's a huge difference
    >between using kmalloc and spin_lock and writing a driver that is built
    >on to of the full USB stack of Linux kernel, for example.

    The legal standard is not whether it "requires" copyrighted aspects but
    whether it *contains* them. The driver does not contain the USB stack. The
    aspects of the USB stack that the driver must contain are purely
    functional -- its API.

    You simply can't have it both ways. If the driver must contain X in order to
    do its job, then X is functional and cannot make the driver a derivative
    work. You cannot protect, by copyright, every way to accomplish a particular
    function. Copyright only protects creative choices among millions of (at
    least arguably) equally good choices.


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