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SubjectFw: Annoying GPL issues

Our attorneys have reviewed the GPL language, and to be honest, it has about
as many holes in it as Jed Clampet's Cabin on the Beverly Hillbillies. The
wind blows right through it. Copyright infringement claims seem to be the
only relief available, but how do you show a damages case when you are
giving the code away for free? The answer is that you really cannot.

There's also the issue of irreparable harm. You might get an injunction
against someone if you can show irreparable harm, but the Federal Rules of
Civil Procedure require that no injunction can be "adverse to the public
interest" or it cannot issue from a court. By definition, open sourcing
is benficial to the public interest, so there is implied consent to use the
code with GPL, even if this runs roughshod over someone's copyrights.

I've heard a lot of "sh_t house" lawyer talk on the net about the GPL
"contaminating upward and downward", but being somewhat of an an expert in
IP law, this position is bunk. So is the mistaken belief that you can draw
a line between "modules" and "compiled code". It's more complicated than

If you give your code away on the net under the GPL, that's just what you've
done. You can get some limited control over releases through the copyright
laws, but it's not clear how far this protection extends since it defeats
the very reason and motivation behind open sourcing code. The best recourse
and the most effective is the one the open source community has been using
for some time, which is to ***OSTRACIZE*** those who break the rules.

I'm not saying that Copyright holders don't have rights, but our review of
the case law in this area shows that legal porecedence is largely undefined.
As companies start to litigate in this arena, this nebulous area may come
into sharper focus.


----- Original Message -----
From: <>
To: <>
Cc: <>
Sent: Wednesday, May 19, 1999 1:25 PM
Subject: Annoying GPL issues

> What do you think about this ? I think it is dangerous to let some
> such as M-Systems or IGEL infringing the GPL.
> [M-systems provides binary only Linux drivers which are statically linked
> the kernel (because there are needed to boot). They simulate a block
> with flash memory ("disk-on-chip") using proprietary and patented
> At least one company (IGEL) is using them in commercial Linux based
> Richard Stallman wrote:
> > > I agree. But the M-systems drivers are NOT MODULES. They are
> linked
> > > to the kernel. So this is clearly illegal according to the GPL. I
> > > Richard Stallman may be interested to hear that.
> > That is clearly a violation of the GPL. However, the FSF can't
> > do anything to enforce the terms for using Linux, because only
> > the copyright holders of Linux have legal standing to do that.
> >
> > My interpretation of the GPL is that it covers dynamically loaded
> > modules as well as statically-linked code. However, since it's up to
> > the copyright holders of Linux to enforce the GPL for Linux, if they
> > say proprietary dynamic modules are permitted, nobody else can object.
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