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    SubjectRe: Linux GPL and binary module exception clause?

    On Fri, 5 Dec 2003, Shawn Willden wrote:
    > So copies to disk and RAM that are "an essential step in the utilization of
    > the computer program" are non-infringing.

    Absolutely. But you don't have the right to distribute them.

    Put another way: nVidia by _law_ has the right to do whatever essential
    step they need to be able to run Linux on their machines. That's what the
    exception to copyright law requires for any piece of software.

    And in fact you should be damn happy for that exception, because that
    exception is also what makes things like emulators legal - software houses
    can't claim that you can't use an emulator to run their programs (well,
    they may _try_, but I don't know if it ever gets to court).

    But what they do NOT have the right to do is to create derivative works of
    the kernel, and distribute them to others. That act of distribution is not
    essential _for_them_ to utilize the kernel program (while the act of
    _receiving_ the module and using it may be - so the recipient may well be
    in the clear).

    So in order for nVidia to be able to legally distribute a binary-only
    kernel module, they have to be able to feel damn sure that they can
    explain (in a court of law, if necessary) that the module isn't a derived
    work. Enough to convince a judge. That's really all that matters. Our
    blathering matters not at all.

    Now, personally, I have my own judgment on what "derivative works" are,
    and I use that judgement to decide if I'd complain or take the matter

    And so _I_ personally think some binary modules are ok, and you've heard
    my arguments as to why. That means that _I_ won't sue over such uses,
    since in my opinion there is no copyright infringement IN THOSE CASES due
    to me not considering them derivative.

    My opinions are fairly public, and the stuff I say in public actually does
    have legal weight in that it limits what I can do (if I say in public that
    I think something is ok, I have a much harder time then making the
    argument that it _isn't_ ok in front of a judge - this is what the
    "estoppel" thing is all about).

    But the thing is, my public opinions don't bind anybody else. So if Alan
    Cox, or _any_ other kernel copyright holder, disagrees with me (and trust
    me, people do), they have the right to complain on their own. Their case
    would be weakened by my stance (simply because a defendant could point to
    my opinions and the judge might be swayed by that).

    And quite frankly, my largest reason for not complaining loudly has often
    been that I'm lazy, and in several cases of sme people using GPL'd work
    improperly I have been ready to join a lawsuit that somebody else
    initiates. So far people have tended to back down.

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