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SubjectRe: Linux GPL and binary module exception clause?
--- In linux-kernel@yahoogroups.com, Linus Torvalds
<torvalds@o...> wrote:
> - anything that was written with Linux in mind
(whether it then
> _also_ works on other operating systems or not) is
clearly
> partially a derived work.

I am no more a lawyer than you are, but I have to
disagree. You
are not free to define "derivative work" as you
please. You
must use accepted legal definitions. At least in the
U.S., you
must consider what Congress had to say on this. They
said, "to
constitute a violation of section 106(2) [which gives
copyright
owners rights over derivative works], the infringing
work must
incorporate a portion of the copyrighted work in some
form; for
example, a detailed commentary on a work or a
programmatic musical
composition inspired by a novel would not normally
constitute
infringements under this clause."
http://www4.law.cornell.edu/uscode/17/106.notes.html

A work that is inspired by Linux is no more a
derivative work than
a programmatic musical composition inspired by a
novel. Having
Linux in mind cannot be enough to constitute
infringement.

Remember also that U.S. copyright law states:
"In no case does copyright protection for an original
work of
authorship extend to any idea, procedure, process,
system, method
of operation, concept, principle, or discovery,
regardless of
the form in which it is described, explained,
illustrated, or
embodied in such work."
http://www4.law.cornell.edu/uscode/17/102.html
Thus you cannot claim infringement because a work
merely shares
ideas or methods of operation with Linux.

The standard used in U.S. courts for determining if
software
violates a copyright includes a filtering procedure to
eliminate
unprotected aspects as described above. A standard
filter is that
you eliminate an element if "The element's expression
was dictated
by external factors, such as using an existing file
format or
interoperating with another program." Computer
Associates v.
Altai specifically discusses the need to filter
elements related
to "compatibility requirements of other programs with
which a
program is designed to operate in conjunction."
http://www.bitlaw.com/source/cases/copyright/altai.html
Code needed to interoperate with the Linux kernel thus
cannot be
considered as a factor in determining if the Linux
copyright is
infringed.

Unless actual Linux code is incorporated in a binary
distribution
in some form, I don't see how you can claim
infringement of the
copyright on Linux code, at least in the U.S.



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