[sf-lug] Potential GPL violation, with the potential intent to victimize our Elderly loved ones

Rick Moen rick at linuxmafia.com
Mon Nov 16 07:20:25 PST 2009

Quoting Jesse Zbikowski (embeddedlinuxguy at gmail.com):

> I guess we are all clear that the particular case of Eldy does not
> redistribute GPL code improperly. 

It's also important to note that the original complaint cited _zero_
reason to believe that Eldy is a derivative work of the Linux kernel,
beyond the fact that it's a proprietary application that runs on Linux.

Logically, if the original poster was alleging that Eldy is committing 
copyright violation against the kernel developers (what he called
"violating the GPL", if the GPL were a statute), then he would have to
lay the same charge against:

Oracle Corporation, for Oracle RDBMS
Sybase Corporation, for Sybase
IBM, for DB2
Sun Microsystems, for Star Office
Microsoft Corporation, for their beta release of NetShow for i386 Linux
Google, Inc. for Google Earth
Adobe Systems, for the Framemaker beta for i386 Linux, Acrobat Reader, 
   Adobe/Macromedia Flash, etc.
...and innumerable other companies that distribute proprietary code for
Linux.  And that nobody's ever thought to complain.

When one's line of reasoning leads to the logical conclusion that dozens 
or hundreds of major corporations are massively violating Torvalds and
company's copyrights, and yet nobody's bothered to get around to
complaining (or suing), then one should be considering the possibility of 
having made a fundamental error.

> It's interesting to take the opportunity to explore what rights
> copyleft is meant to protect, and whether the GPL does a good job of
> it.

There _are_ problem areas.  They have nothing to do with the present

> I see two justifications for this "fundamental internals" criterion.
> The first is just as you say: that people presume some code copying
> must be involved, which is in fact generally the case. I agree that
> the type of code copying is not necessarily copyright-protected so
> that the module developer may not need a license at all (especially if
> he were to re-write the needed header files).

Header files are, again, the very model of functional elements, as that
term is used in copyright law.

> The second, which I mostly see Linus arguing for, is that the binary
> module is presumptively a derived work because it is only meaningful
> the context of the original work it is derived from.

You're implicitly assuming that this assertion, if true, has some
relevance to copyright law.  It does not.

Don't take my word for it.  Read the caselaw.  The court decisions,
especially those of the US Supreme Court and District Courts, are
surprisingly easy to read and understand.

> That is, it is not a complete expression of an idea, but a
> modification (or elaboration) of the expressions found in the original
> work. I'm not sure how legally solid this argument is.  It would seem
> to imply that if I make a modification to a vacuum cleaner design, and
> that original design is under copyright, I cannot sell my modification
> without permission.

It would get dismissed as irrelevant to the legal issue.

And, by the way, you might have missed the point of the idea/expression

o  An idea (for a useful inventions) can, if it meets some criteria, 
   be the basis of a _patent_ application with supporting documentation 
   and a patent fee.  
o  A creative expressions, if put into fixed form, within a number of 
   categories of creative work including literary works (which is where 
   software is classed, believe it or not), will, if it meets some 
   criteria, create _copyright_ title automatically at the moment of 
   the work's creation, without any need for registration or fee.

You seem to have the two concepts muddled together.  Patent and
copyright law are wholly different areas of law.

> Linus would say in the OLD days, the kernel module interface was so
> clear and limited that module code might be considered separate from
> kernel code; nowadays the interface exposes essentially EVERYTHING, so
> module code is kernel code is GPL.

Again, this has absolutely nothing to do with real copyright law.

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