Re: Moglen's "all good faith"

[Alexander Terekhov <alexander.terekhov@gmail.com>]

On 1/20/06, Alexander Terekhov <alexander.terekhov@gmail.com> wrote:
[...]
> My dossier is rapidly growing.

And growing.

Here's more evidence that notwithstanding what the FSF says to the
judge in Indiana, the FSF's own director and lead counsel in fact
(and in "all good faith") doesn't really understand the licensing terms
relevant to the use of Linux.

http://lwn.net/Articles/147070/

LWN: A while back, you said something about getting an answer from
Linus on the Linux kernel license. Since there is a COPYING file
that makes it clear that the kernel is governed under the GPL,
where's the uncertainty?

Eben: If the kernel is pure GPL, then I think we would all agree
that non-GPL, non-free loadable kernel modules represent GPL
violations. Nonetheless, we all know that there are a large number
of such modules and their existence is tolerated or even to some
degree encouraged by the kernel maintainers, and I take that to
mean that as an indication that there is some exception for those
modules.

The kernel also maintains a technical mechanism, namely the
GPL-only symbols and tainting structure, which seems to suggest an
API for the connection of non-GPL'ed code to the kernel, which also
seems to me a strong indication of the presence of an exception.
The difficulty as a lawyer, even a lawyer that is reasonably
knowledgeable about these matters, is that I don't understand what
the terms of that exception are.

So, say I want to audit a system, say an embedded product, in which
I find non-GPL loadable kernel modules present, how do I know
whether that fits within an exception which is legitimately
available to third parties and when it is not?

[...]

So then there are parties in the world who think they are in legal
trouble on one side with the regulators if they do release source
code for loadable kernel modules that drive their software-
controlled radios, and they don't know if they're in legal trouble
on the other side if they don't release source code. For those
parties, in particular, it would be very helpful if the kernel
developers had decided to formalize the nature of their exceptions,
and the Free Software Foundation and I have made a few attempts to
discuss that matter with kernel developers. I had conversations
with Ted Ts'o, I talked to Linus about it and I understood there
were some reluctances to clarify, in a full and complete way, what
was going on. There may have even been disagreements among kernel
developers about that, I wouldn't know. But I continue to think
that it would be useful, for a whole variety of people who are
trying in good faith to do the very best they can, and who may be
navigating some dodgy legal territory, for them to be able to
refer to something beyond the COPYING file which -- with all due
respect -- I think probably doesn't contain all the terms that are
relevant to the use of the kernel.

LWN: So, if the kernel is covered solely by the GPL, you would see
proprietary modules as an infringement?

Eben: Yes. I think we would all accept that. I think that the
degree of interpenetration between kernel modules and the remainder
of the kernel is very great, I think it's clear that a kernel with
some modules loaded is a "a work" and because any module that is
dynamically loaded could be statically linked into the kernel, and
because I'm sure that the mere method of linkage is not what
determines what violates the GPL, I think it would be very clear
analytically that non-GPL loadable kernel modules would violate the
license if it's pure GPL.
-----

Now the most charming piece of Moglen's proclamations regarding
GNU legal system (from another article):

-----
As to the definition of "derivative work," the uncertainty is
experienced by those who would like to make proprietary uses of
GPL'd code, and are unsure whether a particular way of making a
proprietary enhancement to a free work will certainly or only
arguably infringe the free developer's copyright. The correct
answer, of course, is that those who want to take advantage of the
enormous quantity of freely distributable "best of breed"
software now available should do so in a fashion that respects the
principle of freedom in which it was created. All doubt can be
eliminated, for Mr. Michaelson and all other seekers after wisdom,
if they remember what they learned in kindergarten: share and share
alike. IBM, HP, Novell, and other very large and very profit-minded
businesses have no problem with this, nor should Mr. Michaelson's
readers.
-----

Well, "HP, Novell, and other very large and very profit-minded"
aside for a moment,

http://www-128.ibm.com/developerworks/linux/linux390/october2005_recommended.html#RETocos20051014
(OCO modules for the "October 2005 stream")

It doesn't seem to match with Moglen's alternative reality.

regards,
alexander.