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Re: GPL, yet again. (The kernel is a lot like a shared library)

On Wednesday 07 September 2005 03:50 pm, Joe Smith wrote:
> If that statement is true and if it does not qualify as a licence
> exception, then

I think Linus and the KernelDev team has been pretty consistent that they 
consider it their interpretation of the GPL as applied to their software.  As 
a party to the exchange, they are free to define terms as they see fit.

> the following argument would hold:
>    NOTE! The GPL does *not* cover programs that use shared library
>    services by normal function calls - this is merely considered normal use
>    of the shared library, and does *not* fall under the heading of "derived
> work".
> The thing is that the kernel is indeed much like a library, but not like a
> static one.
> The kernel is a lot like a shared library in that it exists in memory, and
> has functions
> that can be called. It is different mainly in that it stays in memory, and
> on some architectures
> has special capabilities not available to regular shared libraries.
> Note that it is not different by being a critical part of the operating
> system, as other libraries,
> especially things like the c library, or even the runtime linking library
> (ld.so)

I've written about this very issue in law school.  It seems to me there are 
two ways to view the issue.  One is that the GPL is a Contract (*shudder*) 
and thus the parties are free to restrict what is done with code they 
distribute.  Consider it a contract that says "you can have this code, but 
only if you free the code you combine it with...  otherwise you can't have 
the code"  That is a perfectly fine contract, mutual promises and all.

However, many say that the GPL is not a contract and must be considered a pure 
license and the sole product of copyright law.  If so, then the GPL can only 
exercise power over (s)106 rights (US copyright law).  Any item outside of 
those rights cannot be controlled by the license.  The GPL tries to do this 
by claiming a derived work or out-and-out copying.  I think you very much hit 
it on the head by asking whether it is either...  and based on my 
understanding of what is and is not a derivative work, what constitutes 
copying, and applicable caselaw, I don't think it is.

But then again, I think the GPL is a contract...  so I don't see it as much of 
a problem.


Sean Kellogg
3rd Year - University of Washington School of Law
Graduate & Professional Student Senate Treasurer
UW Service & Activities Committee Interim Chair 
w: http://www.probonogeek.org

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