Messages in this thread | | | Date | Sun, 21 Dec 2003 22:51:50 +0000 | From | Jamie Lokier <> | Subject | Re: [PATCH] Updating real-time and nanokernel maintainersy |
| |
Linus Torvalds wrote: > There are several cases where this came up: RCU is one obvious one, but > there were also issues with Intel's initial submissions of some of the > networking drivers where they didn't want to originally release under the > GPL because of worrying about patents they owned.
It's commonly understood that patents licensed to _all_ GPL'd projects are ok by the GPL, but when they are limited to _specific_ GPL'd projects they would violate the GPL.
So for example it would not be acceptable _if_ Red Hat's patents were licensed just for Red Hat Linux, but it's fine because Red Hat licenses its patents for all GPL projects.
In the Linux kernel, 2.6.0, I see two minor problems and one major. First the minors:
1. Code under arch/m68k contains this notice:
You are hereby granted a copyright license to use, modify, and distribute the SOFTWARE so long as this entire notice is retained without alteration in any modified and/or redistributed versions, and that such modified versions are clearly identified as such. No licenses are granted by implication, estoppel or otherwise under any patents or trademarks of Motorola, Inc.
The copyright is a BSD-like license, no problem there. But the part about patent licenses appears to either contradict the GPL, or imply that there are no patents to license anyway.
2. Documentation/sound/alsa/SB-Live-mixer.txt draws our attention to 10 patents that are relevant to the SB-Live-mixer implementation.
It doesn't say we're licensed to use them.
3. The MTD flash translation layer patent(s) may not be acceptably licensed. It's obvious that they are against the spirit of GPL; I'm not sure if they satisfy the letter, and that's after reading the GPL carefully (but I'm not a lawyer). From drivers/mtd/ftl.c:
LEGAL NOTE: The FTL format is patented by M-Systems. They have granted a license for its use with PCMCIA devices:
"M-Systems grants a royalty-free, non-exclusive license under any presently existing M-Systems intellectual property rights necessary for the design and development of FTL-compatible drivers, file systems and utilities using the data formats with PCMCIA PC Cards as described in the PCMCIA Flash Translation Layer (FTL) Specification."
Use of the FTL format for non-PCMCIA applications may be an infringement of these patents. For additional information, contact M-Systems (http://www.m-sys.com) directly.
The difficulty is that a person is not free to use the code in ftl.c (and some other files) on any computer they want, nor to take the code and use it in other ways.
This paragraph is from the the preamble of the GPL:
Finally, any free program is threatened constantly by software patents. We wish to avoid the danger that redistributors of a free program will individually obtain patent licenses, in effect making the program proprietary. To prevent this, we have made it clear that any patent must ~~~~~~~~~~~~~~~ be licensed for everyone's free use or not licensed at all. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
It isn't clearly stated whether that means everyone's free use generally, or everyone's free use provided they are only using it on a PCMCIA device.
If the latter is permitted, then I hazard that everyone's free use provided they are only using it on Red Hat Linux is also permitted. That sounds absurd, so by reductio ad absurdum the MTD license is _not_ sufficient license to include the code in drivers/mtd/ in any GPL project, including Linux.
Finally, the config help entry for CONFIG_FTL has this to say:
You may find that the algorithms used in this code are patented unless you live in the Free World where software patents aren't legal - in the USA you are only permitted to use this on PCMCIA hardware, although under the terms of the GPL you're obviously permitted to copy, modify and distribute the code as you wish. Just not use it. ~~~~~~~~~~~~~~~
If the author is correct, then it _is_ permitted to copy, modify and distribute code, and the patent restriction comes into play _only_ when the code is used. In other words, distributing GPL'd source which has patent-infringing uses is fine for the distributor; only the person who uses the code is infringing and may be liable.
However I venture to suggest the author of the config help entry is not a lawyer either, and we should not take his words too precisely.
-- Jamie - 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/
| |