RE: GPL vs non-GPL device drivers

[David Schwartz]

> Linking with kernel exported symbols in a kernel module is by many
> people considered creating a work derived from the kernel.

That's simply unreasonable. It is the most clear settled law that only a
creative process can create a work for copyright purposes. Linking is an
automated process, not a creative process. It cannot create a work at all,
much less a derivative work.

If you have two works, A and B, and neither is a derivative work of the
other, linking them together cannot change the status of A or B. Whether a
work is a derivative work of another is dependent on what the work *is*, not
anything you do with it. The result of the linking of A and B is an
aggregate of A and B and not a single work at all.

I think you severely misstate their position (or I'm overestimating their
understanding). The position of many people is that if you create a work
that is capable of being linked with kernel exported modules, that work
would have to contain so much internal knowledge of (and actual code from)
the kernel that it would have to be a derivative work of it. This would be
true whether or not anybody actually did link it.

Linking cannot change the status of the works linked. The process of linking
is not created and cannot produce a new work.

DS


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