RE: Linux GPL and binary module exception clause?

From: David Schwartz
Date: Thu Dec 04 2003 - 21:02:01 EST

> On Thu Dec 04, 2003 at 03:50:55PM -0800, Paul Adams wrote:

> > 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.

> A kernel module is useless without a Linux kernel in which it can
> be loaded. Once loaded, it becomes not merely an adjunct, but an
> integrat part of the Linux kernel.

There you go, *ONCE* *LOADED* it becomes an integral part. So it's the
*use* of it that makes it integral. Disitribution is prior to use.

> Further, it clearly
> "incorporate[s] a portion of the copyrighted work" since it
> can only operate within the context of the kernel by utilizing
> Linux kernel function calls.

Except the kernel function calls are not copyrighted, only their
implementation is. If you really meant what you're saying, any program that
used 'malloc' would be a derived work of any implementation of 'malloc'.

> To abuse your earlier metaphor, a kernel module is not comparable
> to a programmatic musical composition inspired by a novel. It is
> better comparared with another novel with substantial similarity
> in the theme, plot, sequence, settings, mood, dialogue, and
> characters, with the same story being told, with trademarked
> phrases and taglines, and that makes no sense whatsoever unless
> you insert it's entire content over the top of page 450,
> paragraph 4 (of the Linux "novel"), and which thereby changes
> the ending of the original book...

So long as it must be mixed with the original work (and isn't already),
it's not clear that it's a derived work as it sits. Again, otherwise any
program that used 'malloc' would be a derived work of any implementation of


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